| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 440 |
| Hearing date | 4 Jun 2014 |
| Determination date | 28 October 2014 |
| Member | R Arthur |
| Representation | D Mackinnon ; D Botherway |
| Parties | Martin v Healthy Living Trading Co Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent – Dismissal by e-mail – Whether valid trial period provision – Naturopath |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Unusually worded condition forming basis of job offer, incorrect start date given in proposed employment agreement (“EA”) and respondent’s failure to sign EA until month after applicant commenced employment technicalities that should be put aside in determining substantial merits of case. Applicant’s employment already underway when given amended version of EA for signature before had opportunity to check and consider agreement. No valid trial period provision. Dismissal unjustified. Respondent acted unjustifiably in failing to provide applicant with proper period of notice of dismissal. No employment reviews as envisaged by EA conducted with applicant. Respondent not entitled to do anything likely to mislead or deceive applicant. Respondent failed to comply with duty of good faith and did not put performance concerns to applicant squarely. Applicant unjustifiably disadvantaged by respondent’s failure to address performance concerns properly. REMEDIES: No contributory conduct. Respondent to pay applicant $20,700 reimbursement of lost wages. $10,000 compensation appropriate. |
| Result | Applications granted ; Reimbursement of lost wages ($20,700) ; Compensation for humiliation etc ($10,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4;ERA s4(1A)(c);ERA s6(1)(a);ERA s67A;ERA s67B;ERA s67B(5)(a);ERA s124;ERA s128;ERA s157(1);ERA s174 |
| Cases Cited | Blackmore v Honick Propeties Ltd [2011] ERNZ 445;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808;Smith v Stokes Valley Pharmacy (2009) Ltd [2010] ERNZ 253;Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315 |
| Number of Pages | 13 |
| PDF File Link: | 2014_NZERA_Auckland_440.pdf [pdf 506 KB] |