| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 6 |
| Hearing date | 16 - 18 Sep 2013 |
| Determination date | 10 January 2014 |
| Member | R A Monaghan |
| Representation | M Scott ; S Hornsby-Geluk |
| Parties | Yan v Commissioner of Inland Revenue |
| Summary | UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed unjustifiably dismissed by respondent – Performance improvement plan (“PIP”) initiated after negative performance review – Concerns around applicant’s failures to meet electronic recording and reporting requirements, quality of applicant’s communication and interaction with colleagues, inability to follow instructions, quality of applicant’s advice and unsatisfactory organisation of applicant’s work – Warnings issued after first two PIP periods – Applicant dismissed after third PIP period – Discussion of settlement allowing applicant to resign – Whether disparity of treatment – Solicitor |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent systematic and consistent in identifying performance issues, working through issues during PIP periods and finding most requirements not met at beginning of third PIP period. Some individual examples of unsatisfactory performance minor but examples continued through PIP process and cumulative effect sufficiently corrosive of employment relationship to justify higher degree of seriousness. Respondent entitled to conclude quality of applicant’s advice did not meet required standard. Respondent did not disregard satisfactory aspects of applicant’s performance but based decision on fact no or inadequate improvement in required areas. Reasonable grounds for concluding applicant’s performance not satisfactory. Applicant provided with reasons for respondent’s dissatisfaction. Areas where improvement required discussed exhaustively throughout PIP process and applicant refused or failed to grasp requirements fundamental to role of any senior solicitor. Applicant had reasonable time in which to demonstrate improvement. Comprehensive and objective assessment of required targets undertaken at end of each PIP period. Applicant had opportunity to be heard on respondent’s conclusions and opinions of peer reviewers. Respondent’s decision not hasty. Applicant’s response taken into account. Respondent considered redeployment. Respondent did not breach own policy and guidelines in different document did not provide full definition of poor performance. No improper motive in commencing PIP process and recent offer of secondment genuine attempt to provide meaningful work to applicant. Allocation of files to applicant fair and not so miserly applicant did not have fair opportunity to demonstrate competence. Not unfair to show less tolerance of errors in applicant’s work than colleagues’ errors and no unfair application of standards in applicant’s office compared to other offices. Attempted settlement amounted to genuine attempt to negotiate agreed exit. Length of applicant’s service counterbalanced by very unsatisfactory work history. Respondent entitled to conclude applicant showed unwillingness to change. Dismissal justified. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(2);ERA s103A(3);ERA s103A(4);ERA s103A(5) |
| Cases Cited | Bagchi v Chief Executive of the Inland Revenue Department (2008) 5 NZELR 767;Peters v Davison [1999] 3 NZLR 744;Samu v Air New Zealand Ltd [1995] 1 ERNZ 636;Trotter v Telecom Corp of New Zealand Ltd [1993] 2 ERNZ 659 |
| Number of Pages | 16 |
| PDF File Link: | 2014_NZERA_Auckland_6.pdf [pdf 251 KB] |