| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 283 |
| Hearing date | 6 Dec 2011 |
| Determination date | 20 December 2012 |
| Member | M B Loftus |
| Representation | R Thompson ; J Douglas |
| Location | Christchurch |
| Parties | Giles v A B C Developmental Learning Centre NZ Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Poor Performance - Applicant claimed unjustifiably disadvantaged by final warning and unjustifiably dismissed by respondent – Authority found no claim raised relating to first warning but first warning unfair and respondent unable to rely on first warning when issued final warning – Found respondent failed to provide applicant with requested information regarding expected standards - Found applicant not informed of discussion during respondent’s meeting with students and unable to respond to alleged concerns – Found respondent failed to follow own complaints procedure requiring complaint to be resolved in 21 days when final warning issued to applicant eight weeks after students’ complaint – Applicant unjustifiably disadvantaged by final warning – Found applicant not given opportunity to comment on evidence gathered by respondent after final meeting and not given opportunity to face decision makers – Found respondent relied on invalid warnings in decision to dismiss applicant – Dismissal unjustified - REMEDIES – No contributory conduct - Respondent to pay applicant $15,965 reimbursement of lost wages - $10,000 compensation appropriate - Tutor |
| Abstract | Applicant employed by respondent as tutor. Applicant claimed unjustifiably disadvantaged by final warning and unjustifiably dismissed by respondent. Respondent issued applicant warning following complaint from students regarding applicant’s personal conduct. Applicant not given access to complaint until meeting with respondent. Applicant’s request for examples of inadequate conduct not met by respondent. Respondent received written complaint from students one year later stating applicant unapproachable and rude. Academic manager (“S”), leadership programme manager and students met to discuss complaint. Applicant claimed only aware of meeting from student and claimed meeting contrary to respondent’s complaints procedure. Respondent requested applicant attend disciplinary meeting to discuss complaint, noting previous written warning and negative performance appraisal. At meeting eight weeks after students’ complaint respondent issued applicant final written warning. Applicant claimed not given opportunity to comment on information held by respondent and college manager (“W”) withheld students’ letter of complaint. Applicant claimed respondent unjustifiably relied on warning issued 13 months previously when issued final warning. Respondent received further complaint about applicant from student resulting in meeting between student, W and S, and complaint from staff member about inappropriate comments from applicant to student. Respondent called applicant to meeting to discuss complaints and applicant’s response. W interviewed staff following meeting but information not provided to applicant, and W discussed complaints with respondent’s wider leadership team. W informed applicant teaching style did not reflect respondent’s expectations and treatment of some students unfair, unjust and unreasonable. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: No claim raised by applicant relating to first warning but first warning unfair as applicant not fully appraised of allegations prior to meeting and no time to prepare response. Meeting record showed W’s intent to issue warning before applicant given opportunity to comment. Respondent unable to rely on first warning when issued final warning. Final warning unfair as respondent failed to provide information regarding expected standards when requested by applicant, applicant not informed of discussion during respondent’s meeting with students and unable to respond to alleged concerns. Respondent failed to follow own complaints procedure requiring complaint to be resolved in 21 days when final warning issued to applicant eight weeks after students’ complaint. Applicant unjustifiably disadvantaged by final warning. Applicant not given opportunity to comment on evidence gathered after final meeting. W discussed issues with wider leadership team who contributed to decision to dismiss applicant and applicant not given opportunity to face decision makers. Warnings respondent relied on in deciding to dismiss applicant invalid. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $15,965 reimbursement of lost wages. $10,000 compensation appropriate. |
| Result | Applications granted ; Reimbursement of lost wages ($15,965.01) ; Compensation for humiliation etc ($10,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s103A;ERA s103A(3);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s124;ERA s128(2);Interpretation Act 1999 s4;Interpretation Act 1999 s7 |
| Cases Cited | Auckland City Council v Hennessey (1982) ERNZ Sel Cas 4;Goodman Fielder New Zealand Ltd v Ali (No 2) [2003] 2 ERNZ 656;Irvines Freightlines Ltd v Cross [1993] 1 ERNZ 424;Nutter v Telecom New Zealand Ltd [2003] 2 ERNZ 234;Van der Sluis v Health Waikato Ltd [1996] 1 ERNZ 514 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Christchurch_283.pdf [pdf 191 KB] |