| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 131 |
| Hearing date | 22 Nov 2011 |
| Determination date | 16 April 2012 |
| Member | R Arthur |
| Representation | F Tamati ; T O'Connor |
| Location | Auckland |
| Parties | Kake v Bacchid Benevolency Ltd t/a Absolute Catering |
| Summary | UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed unjustifiably dismissed by respondent – Applicant previously employed by another catering company – Respondent gave applicant employment agreement (“EA”) to sign including trial period on first day – Respondent took EA home to read but did not return EA to respondent when returned to work – Applicant claimed respondent offered applicant further responsibilities and parties agreed on salary for new role – Applicant did not sign amended EA as stated applicant paid hourly not salary – Respondent executive chef (“K”) told applicant would return EA to respondent head office for correction – Respondent claimed issues with applicant’s performance – Applicant claimed K told applicant two weeks later would be dismissed under 90 day trial period or applicant could leave with two weeks’ notice – Applicant claimed refused to leave and respondent requested applicant attend disciplinary meeting – Respondent claimed mistakenly gave applicant EA with trial period and later told applicant not subject to trial period - K claimed applicant mentioned 90 day trial period and only told applicant would be disciplinary meeting as concerns about applicant’s performance – Chef (“W”) claimed K told applicant concerned about applicant’s attitude and applicant asked K about 90 day trial period – W claimed sought feedback from applicant at disciplinary meeting but applicant refused to answer questions and referred all questions to representative (“T”) – W asked applicant to return keys – Respondent claimed applicant failed to return to work after disciplinary meeting – Authority found 90 day trial did not apply to applicant as applicant not given EA before commenced work and alternatively trial period in EA longer than 90 days – Found parties verbally agreed applicant would have new role and increased salary – Respondent claimed applicant resigned - Found applicant did not resign but dismissed after disciplinary meeting – Found respondent did not tell applicant had not been dismissed – Found respondent did not specify what was wrong with applicant’s performance, set out expectations or give applicant time to improve – Found W only asked applicant general questions at disciplinary meeting – Found respondent did not give applicant full and fair opportunity to respond – Dismissal unjustified – REMEDIES – 10 per cent contributory conduct – Found applicant could have been more communicative after disciplinary meeting - $4,309 reimbursement of lost wages - $3,600 compensation appropriate - Front of House Manager |
| Result | Application granted ; Contributory conduct (10%) ; Reimbursement of lost wages ($4,309) ; Compensation for humiliation etc ($3,600) ; No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA s67A;ERA s103A;ERA s124;ERA s174 |
| Cases Cited | Actors Equity IUOW v Auckland Theatre Trust Inc (1989) ERNZ Sel Cas 247;Smith v Stokes Valley Pharmacy (2009) Ltd [2010] ERNZ 253;Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659 |
| Number of Pages | 14 |
| PDF File Link: | 2012_NZERA_Auckland_131.pdf [pdf 63 KB] |