| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2016] NZERA Wellington 36 |
| Hearing date | 14 & 15 Dec 2015 (2 days) |
| Determination date | 22 March 2016 |
| Member | Michele Ryan |
| Representation | P Kiely ; A Sharma |
| Location | Wellington |
| Parties | Nagel v Nelson Underground Services Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed unjustifiably disadvantaged by written warning – Applicant claimed unjustifiably dismissed by respondent – Whether valid 90 day trial period clause – PENALTY – GOOD FAITH – Applicant sought penalty for respondent’s breaches of employment agreement (“EA”) – COUNTERCLAIM – PENALTY – GOOD FAITH – Respondent sought penalty for applicant’s breaches of EA – Labourer |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant given no opportunity to respond to allegations or have responses considered before receiving written warning. Process seriously defective resulting in applicant being treated unfairly. Respondent did not refer to matters concerned about in warning. Applicant unjustifiably disadvantaged by written warning. Respondent did not ensure applicant agreed to 90 day trial clause. 90 day trial period invalid. Applicant given no opportunity to comment on termination of employment. Respondent had legitimate concerns with applicant’s work performance. Applicant did not know performance was in question at time of dismissal. Dismissal unjustified. REMEDIES: Respondent repeatedly communicated timesheet requirements, applicant’s behaviour contributed in causative and blameworthy way. 25 per cent contributory conduct. Respondent to pay applicant $5,255 reimbursement of lost wages. $157 compensation for loss of KiwiSaver benefit appropriate. $3,750 compensation for humiliation etc appropriate. Recommend respondent becomes familiar with good faith obligations.;PENALTY – GOOD FAITH: Respondent’s breach of notice provisions in EA inadvertent. Applicant compensated for losses through personal grievance remedies. Insufficient grounds to support order for penalty. No penalty.;COUNTERCLAIM – PENALTY – GOOD FAITH: Applicant’s failure to comply with time and leave obligations already considered in contributory conduct. Respondent also owed obligations to be responsive and communicative, inappropriate to seek penalty for same deficiency. No penalty. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal); Contributory conduct (25%) ; Reimbursement of lost wages ($5,255.77) ; Compensation for loss of benefit ($157.67)(KiwiSaver) ; Compensation for humiliation etc ($3,750) ; Recommendation made ; Applications dismissed (penalty)(counterclaim – penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s67A;ERA s103A(2);ERA s103A(5);ERA s123(1)(b);ERA s123(1)(c)(i);ERA s123(1)(c)(ii);ERA s123(1)(ca);ERA s124;ERA s128(2);ERA s128(3);ERA s174C(3);ERA s174C(4);ERA s174E |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) [2011] NZEmpC 160, [2011] ERNZ 466;Ark Aviation Ltd v Newton [2002] 2 NZLR 145 (CA), [2001] ERNZ 133;Xu v McIntosh [2004] 2 ERNZ 448 (EmpC);Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659 (EmpC) |
| Number of Pages | 14 |
| PDF File Link: | 2016_NZERA_Wellington_36.pdf [pdf 272 KB] |