| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 114 |
| Hearing date | 8 Feb 2013 |
| Determination date | 03 April 2013 |
| Member | R A Monaghan |
| Representation | R Pool ; I Pitham |
| Parties | Menzies v Safari Group NZ Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed unjustifiably dismissed by respondent – Authority found respondent could not terminate applicant’s employment for any reason whatsoever" under probationary period clause – Found respondent did not follow up on applicant’s concerns regarding work load or seek details of applicant’s state of health - Found respondent did not advise applicant that applicant’s performance meant employment may end after probationary period and did not advise applicant how to improve performance – Dismissal unjustified - REMEDIES – No contributory conduct – Respondent to pay applicant reimbursement of lost wages, parties to determine quantum - $4,000 compensation appropriate – Administration Assistant" |
| Abstract | Applicant employed by respondent as administration assistant. Applicant claimed unjustifiably dismissed by respondent. Applicant’s employment agreement (“EA”) included three month probationary period entitling respondent to end applicant’s employment afterwards for any reason whatsoever". Applicant took periods of sick leave while employed. Respondent concerned applicant unable to grasp required skills or perform tasks accurately. Respondent concerned applicant spent too much time socialising in workplace and discussing matters outside own role. Applicant claimed lull in workload. Respondent claimed applicant could have sought additional work. Applicant requested reduction in working hours due to health issues and light work load. Respondent’s letter confirming agreement for reduction of applicant’s hours noted applicant’s ability to fill role would be assessed before end of probationary period. Respondent claimed discussed respondent’s concerns regarding applicant’s performance in addition to concerns about applicant’s health. Applicant denied discussion took place. Applicant requested extension to period of reduced work hours. Respondent claimed dissatisfied with applicant’s attendance level and performance. Respondent claimed needed full time employee for applicant’s role and applicant’s health had not reached level to allow applicant to return to full working week. Respondent advised applicant exercising respondent’s right under EA to not appoint applicant to permanent position. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant’s EA did not contain valid trial period provision. Applicant’s EA contained probationary period but respondent could not terminate applicant’s employment "for any reason whatsoever". Respondent did not follow up on applicant’s concerns regarding work load or seek details of applicant’s state of health. Respondent did not advise applicant that applicant’s performance meant employment may end after probationary period and did not advise applicant how to improve performance. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant reimbursement of lost wages, parties to determine quantum. $4,000 compensation appropriate." |
| Result | Application granted ; Reimbursement of lost wages (parties to determine quantum) ; Compensation for humiliation etc ($4,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s66(3);ERA s67;ERA s67A;ERA s67B;ERA s103A |
| Cases Cited | Nelson Air Ltd v New Zealand Airline Pilots Assoc [1994] 2 ERNZ 665;New Zealand Meat Workers & Related Trades Union Inc v AFFCO New Zealand Ltd [2010] ERNZ 139;Smith v Stokes Valley Pharmacy (2009) Ltd [2010] ERNZ 253 |
| Number of Pages | 10 |
| PDF File Link: | 2013_NZERA_Auckland_114.pdf [pdf 190 KB] |