| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 98 |
| Hearing date | 16 Aug 2012 |
| Determination date | 03 September 2012 |
| Member | M Ryan |
| Representation | G Ogilvie ; G Cox |
| Parties | Stirling v City Towing NZ (2010) Ltd t/a Porirua City Towing |
| Summary | UNJUSTIFIED DISMISSAL – Dismissal - Applicant claimed unjustifiably dismissed by respondent – Authority found even if applicant given draft employment agreement (“EA”) prior to employment commencing, terms of EA incomplete at best – Found applicant did not agree to draft EA including 90 day trial period provisions prior to commencement of employment - Found EA trial period provisions not enforceable - Found respondent did not raise performance concerns with applicant or give applicant opportunity to comment - Dismissal unjustified – REMEDIES - No contributory conduct - Respondent to pay applicant $11,050 reimbursement of lost wages - $5,000 compensation appropriate |
| Abstract | Applicant claimed unjustifiably dismissed by respondent. Respondent claimed applicant dismissed in accordance with trial period set out in parties’ employment agreement (“EA”). Applicant claimed not given EA when employment commenced and terms of employment not agreed to until month before employment terminated. Applicant claimed received draft EA two weeks into employment and advised therefore trial period did not apply. Applicant raised EA issues with respondent including incorrect spelling of applicant’s name and position title but did not discuss whether trial period applied. Applicant claimed received amended EA but did not agree to changes as still errors in EA. Applicant agreed had verbal altercation with employee and met with respondent director (“C”) to discuss matter but denied C raised any performance concerns. C told applicant employment not “working out” and applicant dismissed in accordance with EA trial period provisions. Respondent claimed applicant’s terms of employment, including trial period, agreed on day employment commenced and applicant given amended EA with agreed changes next day. Respondent claimed told applicant to correct any errors and parties could initial EA but applicant refused and wanted “clean” EA. Respondent claimed applicant did not raise trial period as issue. Respondent accepted did not agree to performance improvement plan before applicant dismissed as claimed dismissal in accordance with EA trial period provision.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Even if applicant given draft EA prior to employment commencing, terms of EA incomplete at best. Applicant did not agree to draft EA including trial period provisions prior to commencement of employment. Parties accepted negotiations of EA terms occurred after applicant’s employment commenced. EA trial period provisions not enforceable. Respondent did not raise performance concerns with applicant or give applicant opportunity to comment. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $11,050 reimbursement of lost wages. $5,000 compensation appropriate. |
| Result | Application granted ; Reimbursement of lost wages ($11,050) ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s63A(2);ERA s63A(2)(a);ERA s63A(2)(b);ERA s63A(2)(c);ERA s63A(2)(d);ERA s67A;ERA s67A(2)(a);ERA s67A(2)(b);ERA s67A(2)(c);ERA s67B;ERA s103A;ERA s128(2);ERA s128(3) |
| Cases Cited | Blackmore v Honick Properties Ltd (2011) 9 NZELC 93,980;Smith v Stokes Valley Pharmacy (2009) Ltd [2010] ERNZ 253 |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Wellington_98.pdf [pdf 233 KB] |