| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 231/05 |
| Hearing date | 30 May 2005 - 31 May 2005 (days) |
| Determination date | 22 June 2005 |
| Member | L Robinson |
| Representation | S Langton ; K McKenzie, R McKenzie |
| Location | Auckland |
| Parties | Johnston v Commercial Helicopters Ltd t/a Mountain Air |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Respondent concerned with applicant's flying performance - In letter informed applicant he was to be given three more training flights and dismissal could result if he did not meet required standards - After first training flight applicant dismissed for serious misconduct - Summary dismissal could not be justified on basis of earlier poor performance - Dismissal unfair because applicant not given all three training flights - Procedurally unjustified because minimum requirements of fair process not accorded to applicant - Unjustified dismissal - Remedies - Contributory conduct - Authority not prepared to find applicant's performance in first training flight was blameworthy conduct - COUNTERCLAIM - BREACH OF CONTRACT - Parties' employment agreement provided that $10,000 fee for training etc would become payable if employment terminated for any reason prior to completing two years full time employment - Respondent sought payment of fee - Provision akin to a penalty because sum sought not accurate measure of respondent's loss - Once party acted to fundamentally breach contract, innocent party was free from all contractual obligations - By unlawfully terminating applicant's employment, applicant was relieved of further performance under employment agreement - Fee not recoverable - Sales/Marketing and Pilot Officer |
| Result | Application granted ; Reimbursement of lost wages (Lost remuneration)($3,493.14) ; (Payment in lieu of notice)($1,916.67) ; Compensation for humiliation etc ($8,000) ; Counterclaim dismissed ; Costs reserved |
| Cases Cited | AG & S Buildings Systems PTY Ltd v G & J Holdings unreported, Allan J, HC Auckland, 8 October 2004, CIV-2004-404-2565;General Billposting Co Ltd v Atkinson [1909] AC 118, (1908-1910) All ER Rep 619 (HL);Ozturk v Gultekin t/a Halikarnas Restaurant [2004] 1 ERNZ 572 |
| Number of Pages | 7 |
| PDF File Link: | aa 231_05.pdf [pdf 76 KB] |