| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 301 |
| Hearing date | 9-Aug-16 |
| Determination date | 02 September 2016 |
| Member | Robin Arthur |
| Representation | D Prisk ; A Moghadam |
| Location | Auckland |
| Parties | Donaldson v Rosemary Trading Ltd |
| Summary | PRACTICE AND PROCEDURE – Whether applicant casual or permanent employee - UNJUSTIFIED DISMISSAL – Abandonment – Applicant claimed unjustifiably dismissed by respondent – 90 day trial period – Shop assistant |
| Abstract | AUTHORITY FOUND –PRACTICE AND PROCEDURE: Applicant worked sufficiently consistent and predictable hours to create legitimate expectation of on-going employment. Applicant permanent employee.UNJUSTIFIED DISMISSAL: Applicant began work before signing employment agreement. Applicant not given agreement in advice of being asked to sign it or given opportunity to seek advice. 90 day trial period invalid. Applicant left meeting with respondent’s director with clear and reasonably-held impression that employment terminated. Respondent’s director’s later emails conditional offer to re-commence already terminated employment relationship. Unlikely that applicant would have abandoned employment. Respondent could not justifiably dismiss applicant without setting objective and measurable standards for improvement and giving applicant reasonable opportunity to meet standards. Fair and reasonable employer could not have failed to advise applicant of concerns about performance before dismissal. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $2,400 reimbursement of lost wages. $5,000 compensation appropriate. |
| Result | Applications granted ; Reimbursement of lost wage ($2,400) ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s63A(2) ; ERA s67A ; ERA s67A(3) ; ERA s67B ; ERA s124 ; ERA s174 ; ERA s174B |
| Cases Cited | Allen v TransPacific Industries Group Ltd (t/a Media Smart Ltd) (2009) 6 NZELR 530 (EmpC) ; Blackmore v Honick Properties Ltd [2011] NZEmpC 152, [2011] ERNZ 445 ; Fagotti v Acme Ltd [2015] NZEmpC 135 ; Jinkinson v Oceana Gold (NZ) Ltd [2009] ERNZ 225 (EmpC) ; PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC) ; Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659 (EmpC) |
| Number of Pages | 12 |
| PDF File Link: | 2016_NZERA_Auckland_301.pdf [pdf 330 KB] |