| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 283 |
| Hearing date | 17 Feb 2012 |
| Determination date | 21 August 2012 |
| Member | K J Anderson |
| Representation | G Bennett ; N Al-shamma |
| Location | Tauranga |
| Parties | Brodie-Bell v Katikati Family Dental Centre Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed – Authority found respondent’s written warning did not identify how applicant could improve performance or within what period improvement required or possible consequences if applicant’s performance did not improve – Found dismissal of applicant arguably substantively justifiable as applicant failed to meet basic requirements after six months’ employment but respondent did not comply with procedural fairness requirements - Dismissal unjustified - Not sufficient evidence to support applicant’s claim had been unjustifiably disadvantaged – REMEDIES - 40 per cent contributory conduct - Respondent to pay applicant $1,872 reimbursement of lost wages - $1,200 compensation appropriate - Dental Receptionist |
| Abstract | Applicant employed as dental receptionist. Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed. Respondent claimed applicant’s dismissal justified due to applicant’s poor performance and denied applicant unjustifiably disadvantaged. Respondent’s owner (“A”) raised concerns about applicant’s performance verbally and in writing. A claimed remained concerned about applicant’s performance week later and issued applicant with written warning. Applicant claimed difficult to concentrate on duties when children of respondent’s owners at workplace, A sometimes dismissive when applicant asked questions and written warning required more frequent cleaning of worksite than set out in applicant’s job description. Applicant claimed respondent’s requirement that applicant complete first aid course dependent on respondent providing supporting letter as applicant required financial support from Work and Income before could complete course. Applicant requested meeting with A to discuss issues. Respondent claimed further issues with applicant's performance arose and in circumstances appropriate applicant consider alternative employment. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent prepared to accommodate applicant’s inexperience in position for first three months of employment but later notified applicant of areas of concern. Respondent’s written warning did not identify how applicant could improve performance or within what period improvement required or possible consequences if applicant’s performance did not improve. Respondent should have considered remedial steps such as further training of applicant and provided applicant with opportunity to be heard. Respondent did not act as fair and reasonable employer in all circumstances. Dismissal of applicant arguably substantively justifiable as applicant failed to meet basic requirements after six months’ employment but respondent did not comply with procedural fairness requirements. Dismissal unjustified. Not sufficient evidence to support applicant’s claim had been unjustifiably disadvantaged. REMEDIES: 40 per cent contributory conduct. Respondent to pay applicant $1,872 reimbursement of lost wages. $1,200 compensation appropriate. |
| Result | Application granted ; Contributory conduct (40%) ; Compensation for humiliation etc ($1,200) ; Reimbursement of lost wages ($1,872) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s103A;ERA s124;ERA s128(2) |
| Cases Cited | New Zealand (with exceptions) Food Processing IUOW v Unilever New Zealand Ltd (1990) ERNZ Sel Cas 582;Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659 |
| Number of Pages | 18 |
| PDF File Link: | 2012_NZERA_Auckland_283.pdf [pdf 232 KB] |