| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2015] NZERA Wellington 81 |
| Hearing date | 30-Apr-15 |
| Determination date | 24 August 2015 |
| Member | Michele Ryan |
| Representation | B Laracy ; P Wilson |
| Location | Wellington |
| Parties | Rameka v GnomeFarmer Painters Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Poor Performance - Applicant claimed unjustifiably dismissed by respondent – 90 day trial period – Summary dismissal - Whether respondent able to cancel employment agreement (“EA”) on basis of applicant’s representations about experience - PENALTY – GOOD FAITH – Applicant sought penalties for respondent’s breach of good faith and failure to provide wage and time records – Painter |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISMISSAL: No written EA between parties, so 90 day trial period not applicable. Respondent unable to justify dismissal on basis of trial period. Respondent able to cancel EA on basis of misrepresentation about experience, but respondent failed to prove existence of misrepresentations. Even if respondent had proven misrepresentations occurred, good faith requirements would prevent respondent from summarily dismissing applicant. Respondent unable to dismiss applicant for poor performance because respondent failed to raise concerns with applicant. Respondent unable to claim applicant employed on fixed term as no EA so no compliance with requirements for written agreement of fixed term contracts. Respodnent failed to put concerns to applicant, allow applicant opportunity to respond and consider explanations. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $2,844 reimbursement of lost wages. $2,500 compensation appropriate.PENALTY: Applicant already compensated for respondent’ breach of good faith so no need to order penalty. Failure to provide wage and time records inadvertent. No penalty. |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages ($2,844) ; Compensation for humiliation etc ($2,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s66(4);ERA s67A(2);ERA s67A(3);ERA s103A(2);ERA s128(2);ERA s130(1);Contractual Remedies Act 1979;Contractual Remedies Act 1979 s7(3) |
| Cases Cited | Allen v TransPacific Industries Group Ltd (t/a Media Smart Ltd) (2009) 6 NZELR 530 (EmpC);Tan v Yang [2014] NZEmpC 65;Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315 (CA) |
| Number of Pages | 9 |
| PDF File Link: | 2015_NZERA_Wellington_81.pdf [pdf 210 KB] |