| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 187/01 |
| Determination date | 14 November 2001 |
| Member | R A Monaghan |
| Representation | G Peploe ; S Taher |
| Location | Auckland |
| Parties | Sprung v Kahn Marjan Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Poor performance - Whether employed on permanent or trial basis - All other employees on two week trial - Unlikely that respondent distinguished applicant from other employees - Discussion with owner of respondent at end of each shift regarding problems and ways to improve - Dismissed at end of trial period - Whether applicant told that employment in jeopardy - Owner attempted to be sensitive during discussions - Later warnings became stronger - Reference appropriately omitted reason for dismissal - On balance applicant received prior warning of risk of termination - Whether entitled to reasonable period of notice - Principles relating to notice periods for trial periods same as principles relating to notice periods generally - Whether decision to dismiss open to fair and reasonable employer - Circumstances analogous to permanent employee dismissed for poor performance following warnings - Trial period did not amount to notice - Summary dismissal not warranted in circumstances - Reasonable notice would have been one week - PENALTY - Failure to offer written employment contract to applicant - Inappropriate to heavily penalise new small businesses for being unaware of legislative obligations - Penalty imposed to acknowledge importance of s64 ERA |
| Result | Application granted in part ; Reimbursement of lost wages ($500)(one week) ; Compensation for humiliation etc ($500) ; Penalty ($250)(Applicant) ; Costs reserved |
| Statutes | ERA s64;ERA s64(2);ERA s65(2);ERA s136(2) |
| Cases Cited | Nelson Air Ltd v New Zealand Airline Pilots Association [1994] 2 ERNZ 665;Power Beat International Ltd v Frater [1998] 2 ERNZ 518 |
| Number of Pages | 6 |
| PDF File Link: | aa 187_01.pdf [pdf 27 KB] |