| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 364 |
| Hearing date | 10 Oct 2012 |
| Determination date | 15 October 2012 |
| Member | R Larmer |
| Representation | M Van Meygaarden (in person) ; S Mascarenhas |
| Location | Auckland |
| Parties | Van Meygaarden v Intagr8 Ltd |
| Summary | PENALTY – Applicant sought penalty for respondent’s failure to provide written employment agreement (“EA”) – Authority found if signed EA existed unlikely applicant would remove from respondent’s office given unexpected nature of dismissal and applicant’s distress – Found applicant not provided with written EA – Found no jurisdiction to award penalty for respondent’s failure to provide written EA as claim not made by Labour Inspector – No penalty – UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed unjustifiably dismissed by respondent – Found no valid trial period as applicant not provided with written EA – Found no evidence applicant subject to performance management process – Found respondent failed to inform applicant employment in jeopardy, put specific concerns to applicant, allow applicant to respond to concerns or give applicant reasonable opportunity to improve – Dismissal unjustified – REMEDIES – No contributory conduct – Respondent to pay applicant $3,173 reimbursement of lost wages – $5,000 compensation appropriate |
| Abstract | Applicant claimed unjustifiably dismissed by respondent and sought penalty for respondent’s failure to provide written employment agreement (“EA”). Respondent claimed provided EA to applicant two or three days after applicant commenced employment, EA signed and returned by applicant and applicant removed EA from respondent’s office after dismissal. Respondent claimed applicant subject to performance management process following complaints from customers. Applicant dismissed. Respondent claimed applicant employed under 90 day trial period but, if not, applicant’s dismissal justified on grounds of poor performance.;AUTHORITY FOUND –;PENALTY: If signed EA existed unlikely applicant would remove EA from respondent’s office given unexpected nature of dismissal and applicant’s distress. Applicant asked to complete handover immediately after dismissal and no evidence any opportunity for applicant to remove EA from office. Respondent failed to respond to questions about circumstances surrounding purported provision of EA to applicant and employer genuinely believing had provided EA would have supported view as soon as possible. Applicant not provided with written EA. No jurisdiction to award penalty for respondent’s failure to provide written EA as claim not made by Labour Inspector. No penalty.;UNJUTSIFIED DISMISSAL: No valid trial period as applicant not provided with written EA. Even if respondent gave applicant EA two or three days after commenced employment, trial period invalid as applicant not new employee. No evidence applicant subject to performance management process and respondent unable to identify complaints received, what investigation undertaken or what information respondent relied on to conclude applicant responsible for apparent problems. Respondent failed to inform applicant employment in jeopardy, put specific concerns to applicant, allow applicant to respond to concerns or give applicant reasonable opportunity to improve. Respondent failed to provide applicant with clear performance expectations stating what required from applicant and timeframe in which to meet expectations. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $3,173 reimbursement of lost wages. $5,000 compensation appropriate. |
| Result | Application granted (unjustified dismissal); Reimbursement of lost wages ($3,173.10); Compensation for humiliation etc ($5,000); Application dismissed (penalty); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4(1A);ERA s65(4);ERA s67A;ERA s67A(1);ERA s67A(3);ERA s67B;ERA s67B(2);ERA s103A;ERA s103A(3);ERA s124;ERA s128(2) |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015;Smith v Stokes Valley Pharmacy (2009) Ltd [2010] ERNZ 253 |
| Number of Pages | 11 |
| PDF File Link: | 2012_NZERA_Auckland_364.pdf [pdf 187 KB] |