| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 177 |
| Hearing date | 18 Apr 2012 |
| Determination date | 29 May 2012 |
| Member | R Larmer |
| Representation | S T Chow (in person) ; T Delamere (in person) |
| Location | Auckland |
| Parties | Chow v TDA Immigration and Student Services Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Poor Performance - Applicant claimed unjustifiably dismissed by respondent - Authority found substantial procedural defects in respondent's investigation - Found applicant not advised discussion about performance disciplinary or issued with warning about performance - Found fair and reasonable employer would not have dismissed applicant in circumstances - Dismissal unjustified - REMEDIES - 20 per cent contributory conduct - $8,788 reimbursement of lost wages - $4,000 compensation appropriate - Legal Policy Analyst |
| Abstract | Applicant employed as legal policy analyst. Respondent director (D") claimed applicant's written work significantly below required standard. D claimed received submission from applicant on behalf of respondent's client ("X") so poorly written decided would dismiss applicant for poor performance. D sent applicant text message that applicant's employment terminated. Applicant accepted had made some minor errors but claimed D's concerns unsubstantiated. Applicant claimed did not receive warning before dismissal. Respondent claimed parties had many discussions about applicant's performance and applicant given warnings.;AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Respondent's criticisms of applicant's work informal and general and respondent did not conduct formal performance improvement process. Applicant not advised discussion about performance disciplinary or issued with warning about performance. Applicant did not have full understanding of how performance needed to improve or how improvement would be assessed by respondent. Applicant not given training on how to improve performance. Applicant not given reasonable opportunity to respond to respondent's concerns. Respondent failed to comply with good faith obligations. Substantial procedural defects in respondent's investigation. Fair and reasonable employer would not have dismissed applicant in circumstances. Dismissal unjustified. REMEDIES: Respondent's concerns about applicant's written work had merit. 20 per cent contributory conduct. $8,788 reimbursement of lost wages. $4,000 compensation appropriate." |
| Result | Application granted ; Contributory conduct (20%) ; Reimbursement of lost wages ($8,788.04) ; Compensation for humiliation etc ($4,000) ; No order for costs ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c)(i);ERA s4(1A)(c)(ii);ERA s103A;ERA s103A(3);ERA s103A(4);ERA s103A(5);ERA s124;ERA s128(3) |
| Cases Cited | Angus v Ports of Auckland (2011) 9 NZELC 94,015 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Auckland_177.pdf [pdf 118 KB] |