| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 38/04 |
| Hearing date | 15 Dec 2003 - 16 Dec 2003 (2 days) |
| Determination date | 27 January 2004 |
| Member | M Urlich |
| Representation | R Alchin ; J Burley |
| Location | Auckland |
| Parties | Sweeney v Te Korowai Hauora O Hauraki |
| Summary | UNJUSTIFIED DISMISSAL - Whether frustration of contract - Respondent received funding from government agency - Applicant 10 year old criminal conviction - Fully disclosed convictions to respondent - Requirement from funding agency that respondent not employ persons with conviction for sexual crimes - Agency became aware applicant had convictions - Advised suspension of funding approval likely to occur - Employment terminated on grounds of frustration - Trust aware of obligations and applicant's convictions and assessed risk - Flawed risk assessment not to be visited upon applicant - No frustration of contract - Not clear whether termination of applicant's employment would have stopped revocation of approval - No notice meeting was dismissal meeting - Dismissal substantively unjustified and procedurally unfair - Remedies - No practical barrier to reinstatement - Reinstatement ordered - Counsellor/support worker |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages (14 weeks) ; Compensation for humiliation etc ($9,000) ; Costs reserved |
| Statutes | Children and Young Person's and Their Families Act 1989;ERA s125 |
| Cases Cited | Karelrybflot v Udovenko [2000] 2 NZLR 24;Motor Machinists Ltd v Craig [1996] 2 ERNZ 585 |
| Number of Pages | 9 |
| PDF File Link: | aa 38_04.pdf [pdf 42 KB] |