| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 467 |
| Hearing date | 29 Oct 2012 |
| Determination date | 19 December 2012 |
| Member | R Larmer |
| Representation | E Hartdegen ; S Davies |
| Location | Tauranga |
| Parties | Gostmann v Independent Refridgeration and Electrical Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant substantively justifiably dismissed for poor performance – Authority found applicant not subjected to graduated warning process, not put on notice employment in jeopardy if did not meet specific performance standards and not subject to performance management process – Dismissal substantively unjustified – REMEDIES – Reinstatement not practicable or reasonable – $5,000 compensation appropriate – 50 per cent contributory conduct – Respondent to pay applicant $5,304 reimbursement of lost wages – PENALTY – GOOD FAITH – Applicant sought penalties for respondent’s breach of employment agreement (“EA”) and good faith obligations – Found respondent’s breach of obligation in EA to observe rules of procedural fairness formed part of applicant’s successful personal grievance – Found respondent breached good faith obligations by failing to provide applicant with access to, or opportunity to comment on, information relevant to decision about applicant’s on-going employment but penalty requirements of s4A Employment Relations Act 2000 not met – No penalty – COUNTERCLAIM – BREACH OF CONTRACT – Respondent sought damages for loss incurred as result of applicant’s pre-employment misrepresentations and poor performance – Found applicant not required to disclose certain matters – Found applicant misrepresented skills and experience at pre-employment stage – Found not satisfied respondent’s losses caused by applicant’s misrepresentations – Found not established applicant negligent to required standard and no provision in EA allowing respondent to recover costs incurred as result of applicant’s errors or poor workmanship – No damages – Technician |
| Abstract | Applicant employed by respondent as technician. Applicant claimed unjustifiably dismissed by respondent and sought penalties for respondent’s breach of employment agreement (“EA”) and good faith obligations. Applicant dismissed. Respondent acknowledged summary dismissal procedurally unjustified but claimed dismissal substantively justified as applicant misrepresented skills and experience at pre-employment stage and applicant’s performance substandard. Respondent sought damages for loss incurred as result of applicant’s pre-employment misrepresentations and poor performance.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant not subjected to graduated warning process, not put on notice employment in jeopardy if did not meet specific performance standards and not subject to performance management process. Dismissal substantively unjustified. REMEDIES: Not reasonable for respondent to have to try and upskill applicant where applicant lost confidence of respondent and applicant’s colleagues. Theme developed from untested hearsay evidence suggested applicant may not have been completely forthcoming about nature of former employment. Unreasonable to require respondent to supervise applicant when applicant employed as experienced engineer with 15 years’ experience and impracticable to reinstate applicant where questionable whether safe for applicant to work alone. Number and extent of applicant’s errors meant reinstatement unreasonable. Reinstatement not practicable or reasonable. $5,000 compensation appropriate. 50 per cent contributory conduct. Respondent to pay applicant $5,304 reimbursement of lost wages.;PENALTY – GOOD FAITH: Respondent’s breach of obligation in EA to observe rules of procedural fairness formed part of applicant’s successful personal grievance. Respondent breached good faith obligations by failing to provide applicant with access to, or opportunity to comment on, information relevant to decision about applicant’s on-going employment but penalty requirements of s4A Employment Relations Act 2000 not met. No penalty.;COUNTERCLAIM – BREACH OF CONTRACT: Applicant disclosed to respondent lived in different city with wife, had fixed term lease on rental property and applicant’s wife would not move until found work near respondent. Applicant not required to disclose applicant’s wife studying in different city or fact applicant’s son had incurred significant university fees as not reasonably likely to affect adversely applicant’s work attendance or performance. Applicant misrepresented skills and experience at pre-employment stage. Not satisfied respondent’s losses caused by applicant’s misrepresentations. Not established applicant negligent to required standard and no provision in EA allowing respondent to recover costs incurred as result of applicant’s errors or poor workmanship. Extent of respondent’s losses may not have been as significant if respondent made thorough inquiries at pre-employment stage, questioned applicant much more closely about past experience and implemented proper performance management process. No damages. |
| Result | Application granted (unjustified dismissal) ; Compensation for humiliation etc ($5,000) ; Contributory conduct (50%) ; Reimbursement of lost wages ($5,304) ; Applications dismissed (penalty – good faith)(counterclaim – breach of contract) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s4(1A)(c)(i);ERA s4(1A)(c)(ii);ERA s4A;ERA s103A;ERA s103A(3);ERA s124;ERA s125;ERA s128(2);ERA s160(2) |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) (2011) 9 NZELR 40;Lewis v Howick College Board of Trustees (2010) 7 NZELR 539;New Zealand Educational Institute v Board of Trustees of Auckland Normal Intermediate School [1994] 2 ERNZ 414 |
| Number of Pages | 15 |
| PDF File Link: | 2012_NZERA_Auckland_467.pdf [pdf 272 KB] |