| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 292/06 |
| Hearing date | 24 Aug 2006 |
| Determination date | 13 September 2006 |
| Member | K Raureti |
| Representation | C Bennett ; E Butcher |
| Location | Auckland |
| Parties | Stephenson v Sealegs International Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Poor performance - Respondent alleged skills and speed of work inadequate – Respondent created new position which required use of design software to draw plans – During interview applicant stated he lacked in-depth knowledge of software and would require initial targeted assistance – Interview process required applicant to complete pre-employment drawing tests to assess familiarity with software – Applicant completed test to adequate standard but unknown to respondent had sought assistance from software support desk – During first week company founder (CF) noticed applicant struggling and attempted to assist him but projects not completed on time – One week into employment CF rang applicant in evening and told him he had grave concerns about abilities, he did not think it was working out and perhaps they should call it quits – Applicant assured CF he could do job and persuaded CF to give him another chance – CF decided if subsequent project completed on time employment would continue – Project not completed on time – CF worked with applicant to complete project but became apparent he could not complete project to satisfactory standard – Decided respondent could not continue to employ applicant – Applicant called into office and informed employment over – Applicant’s employment covered by three month probationary period – Respondent asserted applicant given adequate warning and opportunity to improve – Telephone call did not constitute fair warning – Respondent claimed dismissal meeting procedurally fair bearing in mind lower threshold of probationary period – CRC Industries New Zealand Ltd v Person (cited below) distinguished – Respondent did not articulate shortcomings or advise what improvements were necessary – Assistance provided at strategic level, not level necessary to successfully progress and complete projects – Respondent’s prior knowledge applicant would need assistance, the early stage of the employment relationship, and fact that position was new for respondent, obliged it to provide guidance and feedback – Unjustified dismissal – Remedies – Applicant could have been more forthcoming with pre-employment test but balanced against his indications that he would require initial support there was no blameworthy conduct requiring reduction of remedies – Apparent applicant experiencing difficulties with work and unlikely employment would have survived beyond three month probationary period – Length of employment three weeks and two days - CAD Draughtsman |
| Result | Application granted ; Reimbursement of lost wages (7 weeks and 3 days) ; Compensation for humiliation ($4,000) ; Costs reserved |
| Statutes | ERA s128(3) |
| Cases Cited | CRC Industries New Zealand Ltd v Person unreported, Colgan J, 23 October 1997, AEC 122/97;Nelson Air Ltd v New Zealand Airline Pilots Association [1994] 2 ERNZ 665 |
| Number of Pages | 6 |
| PDF File Link: | aa 292_06.pdf [pdf 42 KB] |