| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 91 |
| Hearing date | 4 Apr 2012 |
| Determination date | 13 August 2012 |
| Member | M Ryan |
| Representation | M Smith ; L Penno |
| Parties | Valois v McLachland Farms Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed – Respondent claimed dismissal in accordance with 90 day trial period in parties’ employment agreement or alternatively dismissal justified - Authority found respondent could not rely on trial period clause to justify dismissal - Found applicant did not give respondent notice of resignation – Found respondent could not rely on applicant’s statements made during heated argument and failure to give end date of employment and claim no longer had trust and confidence in applicant - Dismissal unjustified - Reasonable of respondent to prepare for applicant’s departure after told applicant leaving - No unjustified disadvantage - REMEDIES - No contributory conduct - $3,682 reimbursement of lost wages - $1,985 compensation for loss of benefits appropriate - $6,000 compensation appropriate - COUNTERCLAIM – GOOD FAITH – PENALTY - Respondent sought penalty for applicant's alleged failure to comply with good faith obligations - Applicant’s conduct did not amount to breach of good faith obligations - No penalty - Farm Manager |
| Abstract | Applicant employed as farm manager. Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed. Respondent claimed dismissal in accordance with 90 day trial period in parties’ employment agreement (“EA”) and applicant not entitled to bring grievance. Alternatively, respondent claimed applicant’s dismissal justified and not unjustifiably disadvantaged. Applicant claimed verbally accepted employment with respondent. Respondent sought penalty for applicant's failure to comply with good faith obligations. Applicant's previous EA did not include trial period clause. Respondent denied applicant told same terms and conditions of employment would apply and only told applicant salary would be unchanged. Parties disputed whether applicant received copy of written EA before employment commenced. Respondent director (“M”) claimed parties agreed to three month “honeymoon period” so parties could decide if wanted employment to continue after three months. Applicant claimed aware of “honeymoon period” but denied any reference to trial period. Applicant denied advised could seek independent advice or when had to sign EA. EA stated applicant subject to 90 day trial period. Applicant did not sign EA. Applicant unhappy with employment and told respondent did not think employment relationship was going to work and was looking for new job. Applicant claimed did not respond to respondent’s email seeking written resignation as had not resigned. M advised applicant wanted to show prospective employees property. Applicant told respondent had not resigned and parties agreed would discuss notice period when applicant found alternative employment. M requested applicant’s end date two weeks later. Parties had heated argument ending with applicant pushing M (“later incident”). Investigation commenced. Respondent told applicant had lost trust and confidence in applicant and employment would be terminated in accordance with EA trial period. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Applicant given copy of written EA before employment commenced. However respondent only gave applicant two and a half working days to seek independent advice therefore applicant not given sufficient opportunity to seek advice and consider EA. Applicant’s acceptance of “honeymoon period” did not amount to acceptance of trial period. Respondent could not rely on EA’s trial period clause to justify dismissal. Applicant did not give respondent notice of resignation. Although applicant’s behaviour during later incident unacceptable, both parties swore and antagonised each other. Respondent could not rely on applicant’s statements made during heated argument and failure to give end date and claim no longer had trust and confidence in applicant. Dismissal unjustified. Reasonable for respondent to prepare for applicant’s departure after told applicant leaving. No unjustified disadvantage. Appropriate to treat applicant’s claim unjustifiably disadvantaged by respondent’s actions during later incident as part of unjustified dismissal claim. Applicant not unjustifiably disadvantaged by respondent’s failure to pay service costs for applicant’s personal vehicle or provide applicant with respondent vehicle. REMEDIES: No contributory conduct. $3,682 reimbursement of lost wages. $1,985 compensation for loss of benefits appropriate. $6,000 compensation appropriate.;COUNTERCLAIM – GOOD FAITH - PENALTY: Both parties contributed to misunderstanding about whether applicant’s employment terminated. Applicant’s conduct did not amount to breach of good faith obligations. No penalty. |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages ($3,682.72) ; Compensation for loss of benefits ($1,985.45) ; Compensation for humiliation etc ($6,000) ; Applications dismissed (unjustified disadvantage and counterclaim for penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4A;ERA s67A;ERA s67B;ERA s103A;ERA s103A(3);ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s103A(5);ERA s128;ERA s128(2) |
| Cases Cited | Blackmore v Honick Properties Ltd (2011) 9 NZELC 93,980;Simmons v Collins Stainless Steel Fabricators Ltd [2011] NZERA Auckland 330 |
| Number of Pages | 22 |
| PDF File Link: | 2012_NZERA_Wellington_91.pdf [pdf 362 KB] |