| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 146 |
| Hearing date | 6-Oct-15 |
| Determination date | 07 October 2015 |
| Member | Helen Doyle |
| Representation | R Thompson ; no appearance |
| Location | Christchurch |
| Parties | McCormack v Niu |
| Summary | PRACTICE AND PROCEDURE – Identity of employer - UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed unjustifiably dismissed by respondent – 90 day trial – COSTS – Applicant sought contribution towards costs - No appearance for respondent – Hotel receptionist |
| Abstract | AUTHORITY FOUND –;PRACTICE AND PROCEDURE: Respondent signed employment agreement (“EA”) and letter of dismissal. Applicant never told employed by other company, although payments to bank account made in name of company. Respondent only suggested that applicant employed by other company late in investigation process. Applicant employed by respondent.;UNJUSTIFIED DISMISSAL: 90 day trial period clause invalid as did not meeting statutory requirements. Respondent did not comply with terms of trial period as set out in EA. Respondent failed to investigate allegations, properly raise concerns, provide applicant with opportunity to explain or have explanation considered. Fair and reasonable employer could not have dismissed applicant for issues raised. Dismissal appeared to be pre-determined. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $12,334 reimbursement of lost wages. $370 compensation for loss of KiwiSaver benefit appropriate. $12,000 compensation for humiliation appropriate.;COSTS – Half day investigation meeting. Appropriate to award uplift in notional daily tariff to acknowledge unnecessary documents provided by respondent, respondent’s change in legal representation and late adjournment request. Respondent to pay applicant $2,500 contribution towards costs. |
| Result | Applications granted ; Reimbursement of lost wages ($12,334) ; Compensation for loss of benefit ($370.02) ; Compensation for humiliation etc ($12,000) ; Costs in favour of applicant ($2,500) ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s67A;ERA s103A;ERA s103A(3);ERA Second Schedule cl12 |
| Number of Pages | 12 |
| PDF File Link: | 2015_NZERA_Christchurch_146.pdf [pdf 174 KB] |