| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 286/06 |
| Hearing date | 23 Aug 2006 |
| Determination date | 12 September 2006 |
| Member | J Scott |
| Representation | C Bennett ; R & A Moncur |
| Location | Auckland |
| Parties | Salisbury v Moncur Engineering Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Poor performance - Two months into employment applicant's performance deteriorated markedly – Applicant’s employment reviewed four months into relationship – Applicant rated himself average and below average on number of criteria – Respondent claimed clear to applicant improvement needed or job in jeopardy – Next day applicant did unsatisfactory job painting crane and respondent told applicant if he did not come in next day and paint crane there was no job for him – Following day applicant commenced period of sick leave – Company director prepared warning letter and dismissal letter with view that appropriate letter be given to applicant – Foreman received only dismissal letter and sent it to applicant – Applicant claimed he was frequently told he was doing great job, was given pay rise and that dismissal letter was first time he knew respondent unhappy with performance – Respondent accepted dismissal process deficient but sought compensation for cost of time and remedial work undertaken to correct applicant’s work – Performance deteriorated dramatically and applicant aware of mistakes – Employment agreement provided for probationary period of “about” three months but had expired at time of dismissal – Respondent should have been alert to probationary nature of employment and addressed performance issues so as to confirm or terminate employment - Applicant given training and support but no consistent approach to identify deficiencies, set measurable standards and give time for improvement – Should have been clear statement employment in jeopardy if no improvement – Respondent had all contractual tools necessary to address performance shortcomings – Instead of using tools, respondent failed to provide fair and structured response to emerging performance problems – Applicant summarily dismissed while on sick leave without a vestige of fair process – Unjustified dismissal – Remedies – Authority found that in all probability applicant’s performance would never have improved to required extent – Had respondent followed structured and fair process it remained highly probable employment would have been justifiably terminated within a month – Lost remuneration set at three weeks – COSTS - Investigation meeting little over half a day - COUNTERCLAIM - Damages - No evidence to suggest applicant acted deliberately or was grossly negligent - Problem was poor performance and remedy lay in respondent's hands via reliance on probationary provisions - Length of service four months - Labourer/trades assistant |
| Result | Application granted (Unjustified dismissal) ; Reimbursement of lost wages ($2,295)(3 weeks) ; Compensation for humiliation etc ($4,000) ; Costs in favour of applicant ($1,000) ; Application dismissed (Damages) |
| Cases Cited | Air New Zealand Ltd v Hudson [2006 1 ERNZ 415;Nelson Air Ltd v NZ Airline Pilots' Association [1994] 2 ERNZ 665;Telecom New Zealand Limited v Nutter [2004] 1 ERNZ 315;Trotter v Telecom Limited [1993] 2 ERNZ 659 |
| Number of Pages | 7 |
| PDF File Link: | aa 286_06.pdf [pdf 34 KB] |