| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 46/04 |
| Hearing date | 20 Nov 2003 |
| Determination date | 05 February 2004 |
| Member | Y S Oldfield |
| Representation | J Lawrie ; C Bennett |
| Location | Auckland |
| Parties | Wrench v m & K Atkins Ltd t/a The Warratah Retirement Home |
| Summary | UNJUSTIFIED DISMISSAL - Long term injury resulted in applicant being off work - Prognosis meant applicant likely to be absent for 5 months - Decision to dismiss after one month - Meeting with applicant's representative - Alleged predetermination as respondent conveyed to ACC that applicant was not likely to continue in employment due to disciplinary investigation - Employer not obligated to hold position open indefinitely - Decision to dismiss based on need to fill important position - Unsuccessful attempts made to temporarily fill applicant's position - Dismissal open to fair and reasonable employer - UNJUSTIFIED DISADVANTAGE - Grievance treated different from one alleged - Comments to ACC that applicant unlikely to remain employee amounted to disadvantage - No justification for comments - Disciplinary investigation had not commenced - Unjustified disadvantage established - PENALTY - Penalty sought for failure to comply with ss64 and 65 of the Employment Relations Act 2000 - Failed to advise of right to seek independent advice regarding employment agreement - Significant terms of employment agreement incomplete when provided to applicant - Breach established - Penalty filed outside 12 month limitation - Penalty not available - Would have awarded penalty had claim been filed in time - Rest home nurse |
| Result | Application dismissed (Unjustified dismissal and Penalty) ; Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Statutes | ERA s64(2)(a);ERA s64(2)(b);ERA s64(2)(c);ERA s65;ERA s122;ERA s135(5) |
| Number of Pages | 12 |
| PDF File Link: | PDF file not available for download, please contact us to request a copy. |