| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 459 |
| Hearing date | 16 Sep 2013 |
| Determination date | 03 October 2013 |
| Member | E Robinson |
| Representation | D Prisk ; R Ragunathan |
| Location | Auckland |
| Parties | Rajkarnikar v Emacs Group Ltd |
| Summary | JURISDICTION – Applicant employee – UNJUSTIFIED DISMISSAL – Dismissal – Dismissal unjustified |
| Abstract | Applicant (Ms Rajkarnikar) claimed employed by respondent (Emacs Group Ltd) as architect designer (Professional, Scientific and Technical Services Sector). Applicant claimed unjustifiably dismissed by respondent. Applicant applied for job with respondent and participated in interview. Respondent asked applicant to undertake two day work trial to check applicant’s skill. Applicant claimed would be paid for work trial. Respondent claimed applicant would only be paid for work trial if applicant selected for employment. Following work trial applicant claimed offered employment with respondent and handed employment agreement (“EA”). EA contained 90 day trial period provision. Respondent claimed applicant included in final list of candidates and EA draft only and provided solely to allow applicant to become familiar with respondent’s standard terms and conditions of employment. Parties had discussions about salary and applicant’s start date. Applicant arranged to move cities to take up job. Five days later respondent told applicant needed more time to consider applicant’s start date. Over following week applicant made frequent attempts to confirm start date. Respondent claimed applicant’s attitude during final conversation aggressive and inappropriate. Respondent claimed applicant used mobile telephone excessively and did not complete allocated tasks during work trial. Respondent told applicant not willing to proceed with applicant’s employment. Respondent denied applicant employed by respondent.;AUTHORITY FOUND –;JURISDICTION: Work undertaken by applicant during two day work trial consisted of tasks forming part of respondent’s current work for benefit of clients. Work undertaken not merely test of applicant’s abilities but legitimate work benefitting respondent’s commercial enterprise. Applicant’s expectation would be paid for work trial reasonable given conversation during interview and fact employment agreement stated to commence on first day of work trial. Applicant employee of respondent during work trial. Alternatively, respondent made applicant oral offer of employment following work trial by saying respondent happy with applicant’s performance and wanted applicant to work for respondent. No indication EA draft agreement only. Discussion between parties about salary level and start date did not have effect of cancelling offer of employment. Applicant accepted offer of employment by signing and returning EA. Even if applicant not employed during work trial, applicant became person intending to work. Applicant employee.;UNJUSTIFIED DISMISSAL: Applicant not provided with and did not sign EA until after work trial. Applicant already employee of respondent when signed EA. Respondent unable to rely on 90 day trial period provision. No evidence applicant made use of mobile telephone during work trial and applicant’s failure to complete tasks due to limitations of respondent’s computer software. Applicant not provided with information about allegations or opportunity to respond. Applicant frustrated by lack of response from respondent about start date given applicant had resigned from previous job and made arrangements to move cities but applicant did not use inappropriate language during final conversation with respondent. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $3,538 reimbursement of lost wages. $3,000 compensation appropriate. |
| Result | Applications granted ; Reimbursement of lost wages ($3,538.40) ; Compensation for humiliation etc ($3,000) ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA;ERA s5;ERA s6;ERA s6(1)(b);ERA s6(1)(b)(ii);ERA s67A;ERA s67B;ERA s103A;ERA s124 |
| Cases Cited | Smith v Stokes Valley Pharmacy (2009) Ltd [2010] ERNZ 253;The Salad Bowl Ltd v Howe-Thornley [2013] NZEmpC 152 |
| Number of Pages | 13 |
| PDF File Link: | 2013_NZERA_Auckland_459.pdf [pdf 213 KB] |