| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 127 |
| Hearing date | 12 Apr 2013 |
| Determination date | 12 April 2013 |
| Member | R Larmer |
| Representation | D Prisk ; no appearance |
| Location | Auckland |
| Parties | Buchan v Elite Spraypainting Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Poor performance – Applicant claimed unjustifiably dismissed by respondent - Authority found applicant given no information to support respondent’s decision to dismiss applicant – Found respondent did not have good reason for dismissing applicant or follow fair and proper process – Dismissal unjustified – REMEDIES - No contributory conduct - Respondent to pay applicant $3,840 reimbursement of lost wages - $4,000 compensation appropriate – COSTS - Length of investigation meeting not specified – Applicant sought contribution towards costs – Found respondent’s failure to attend mediation warranted increase to notional daily tariff - Respondent to pay applicant $1,200 contribution towards costs – Spray Painter |
| Abstract | Applicant employed by respondent as spray painter. Applicant claimed unjustifiably dismissed by respondent and sought contribution towards costs. No appearance for respondent. Applicant claimed respondent told applicant “it wasn’t working out” and applicant “had to go”. Applicant claimed asked respondent about working out notice period but was told by respondent to leave immediately. Applicant dismissed. Respondent claimed applicant dismissed for failure to follow instructions. Applicant claimed no previous warnings from respondent and applicant unaware risked dismissal.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant had no opportunity to answer respondent’s concerns as respondent had never identified specific performance issues. Applicant given no information to support respondent’s decision to dismiss applicant. Respondent did not have good reason for dismissing applicant and did not follow fair and proper process. Summary dismissal limited to situations of serious misconduct and dismissal for poor performance should follow graduated warning process. Respondent did not performance manage applicant. Lack of process by respondent not minor defect and resulted in substantial unfairness to applicant. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $3,840 reimbursement of lost wages. $4,000 compensation appropriate.;COSTS: Length of investigation meeting not specified. Respondent’s failure to attend mediation warranted increase to notional daily tariff. Respondent to pay applicant $1,200 contribution towards costs. |
| Result | Applications granted ; Compensation for humiliation etc ($4,000) ; Reimbursement of lost wages ($3,840) ; Costs in favour of applicant ($1,200) ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s103A;ERA s103A(2);ERA s103A(3);ERA s103A(4);ERA s103A(5);ERA s124;ERA s128(2) |
| Number of Pages | 6 |
| PDF File Link: | 2013_NZERA_Auckland_127.pdf [pdf 265 KB] |