| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 402 |
| Hearing date | 24 Oct 2012 |
| Determination date | 03 December 2012 |
| Member | A Fitzgibbon |
| Representation | M Moncur ; V Ceponis, Y Mak |
| Location | Auckland |
| Parties | D'Souza v Talent Bean Ltd t/a Roasted Addiqtion Cafe |
| Summary | UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for poor performance following two warnings – Authority found applicant’s behaviour did not warrant any disciplinary action – Found issuing warnings and dismissal in e-mail without discussion not responses open to fair and reasonable employer – Found respondent did not comply with obligation to implement dismissal in procedurally fair manner – Dismissal unjustified – REMEDIES – No contributory conduct – Respondent to pay applicant $1,848 reimbursement of lost wages – $10,000 compensation appropriate – ARREARS OF WAGES – Applicant sought arrears of wages – Found applicant should have raised claim working more than contracted hours and not being paid rather than continue to work extra hours – No arrears of wages – COSTS – One day investigation meeting – Applicant sought contribution towards costs – Respondent to pay applicant $3,500 contribution towards costs – Head chef |
| Abstract | Applicant employed by respondent as head chef. Applicant claimed unjustifiably dismissed by respondent and sought arrears of wages. Applicant sought contribution towards costs. Following confrontation between applicant and respondent’s director’s (“S”) father, applicant wrote up list of matters about applicant’s job and requested meeting to discuss matters. Applicant claimed S refused to discuss applicant’s concerns, threatened to dismiss applicant and ruin applicant’s application for permanent residence. Two days later applicant received e-mail containing two warning letters listing number of matters of concern. Respondent claimed applicant’s poor performance had been affecting business and S had to speak to applicant regularly. Respondent claimed planned to hand warning letters to applicant at meeting but applicant had left meeting before S could do so. Applicant replied stating respondent’s allegations false and asked for apology. Two hours later applicant dismissed by e-mail. Applicant claimed not paid for extra hours worked. Respondent claimed informed by previous owner of business applicant would work extra hours and not seek payment.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Various matters of concern about applicant listed by S and members of S’s family during investigation meeting but almost no matters raised with applicant and most not contained in witness statements. If applicant’s performance as bad as S made out at investigation meeting surprising S took no steps to see if respondent could rely on 90 day trial period provision in applicant’s employment agreement. Applicant’s behaviour did not warrant any disciplinary action. Issuing warnings and dismissal by e-mail without discussion not responses open to fair and reasonable employer. Respondent did not comply with obligation to implement dismissal in procedurally fair manner. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $1,848 reimbursement of lost wages. $10,000 compensation appropriate.;ARREARS OF WAGES: Applicant should have raised claim working more than contracted hours and not being paid rather than continue to work extra hours. Not appropriate for applicant to raise belated arrears of wages claim. No arrears of wages.;COSTS: One day investigation meeting. Respondent to pay applicant $3,500 contribution towards costs. |
| Result | Application granted (unjustified dismissal); Reimbursement of lost wages ($1,848); Compensation for humiliation etc ($10,000); Costs in favour of applicant ($3,500); Disbursements in favour of applicant ($71.56)(filing fee); Application dismissed (arrears of wages) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(1);ERA s103A(2);ERA s103A(3);ERA s124 |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) (2011) 9 NZELR 40 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Auckland_402.pdf [pdf 303 KB] |