| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2014] NZERA Wellington 78 |
| Hearing date | 6 Jun 2014 |
| Determination date | 22 July 2014 |
| Member | T MacKinnon |
| Representation | B Bucket ; S Turner |
| Parties | Fagotti v Acme & Co Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Dismissal - Applicant claimed unjustifiably dismissed by respondent - Applicant offered full-time employment after trial shift - Whether applicant's employment agreement (EA") had valid trial period provision - UNJUSTIFIED DISADVANTAGE - BARGAINING - Applicant claimed unjustifiably disadvantaged by respondent's unfair bargaining for EA" |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Respondent did not reference trial period provision specifically in letter dismissing applicant but believed entitled to rely on provision. Parties entered into employment relationship at time applicant accepted trial period of work during which applicant performed duties of economic benefit to respondent for which applicant expected remuneration. Earlier trial shift meant applicant had been employed by respondent previously when signed EA on first day of full-time employment. Trial period provision unenforceable. Any underlying reasons for dismissal not put to applicant. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $2,098 reimbursement of lost wages. $5,000 compensation appropriate. Leave reserved for parties to return to Authority if disagreed with calculation of lost wages.;UNJUSTIFIED DISADVANTAGE - BARGAINING: Applicant not given EA until arrived for first day of full-time employment. Not reasonable for respondent to put responsibility on applicant for uplifting EA prior to commencing work and no evidence applicant asked to do so. Respondent did not bring trial period provision to applicant's attention or tell applicant could defer starting work until advice taken on EA. Applicant denied opportunity to take advice on EA before commencing full-time employment. Respondent's bargaining for EA unfair. No separate personal grievance for unjustified disadvantage. $1,500 compensation appropriate for unfair bargaining. |
| Result | Applications granted (unjustified dismissal)(bargaining) ; Reimbursement of lost wages ($2,098) ; Compensation for humiliation etc ($5,000) ; Compensation for unfair bargaining ($1,500) ; Application dismissed (unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s63A;ERA s63A(1);ERA s63A(2);ERA s67A;ERA s67A(3);ERA s67B;ERA s67B(2);ERA s68;ERA s68(2)(d);ERA s69;ERA s69(1)(a);ERA s103;ERA s103(1)(b);ERA s103A;ERA s128;ERA s128(2) |
| Cases Cited | Blackmore v Honick Properties Ltd [2011] ERNZ 445;Salad Bowl Ltd v Howe-Thornley [2013] ERNZ 326 |
| Number of Pages | 13 |
| PDF File Link: | 2014_NZERA_Wellington_78.pdf [pdf 190 KB] |