| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 365/06 |
| Hearing date | 20 Nov 2006 |
| Determination date | 04 December 2006 |
| Member | V Campbell |
| Representation | M Nutsford ; D Brickley |
| Location | Auckland |
| Parties | Waugh v H.B. Holdings Ltd t/a Dive HQ Tauranga |
| Summary | UNJUSTIFIED DISMISSAL - Poor performance - Applicant dismissed at end of three month trial period - Received verbal warning following complaint acted unprofessionally when admitted drinking night before to customer - Alleged applicant provided faulty equipment, made errors in stock take and filled out of date dive cylinder - Called into manager's office and advised gave credit to customer when not authorised - Dismissed on notice - Authority accepted safety important aspect of job - Possibly faulty equipment had potential to cause serious harm - No dispute performance concerns discussed on number of occasions - Under employment agreement entitled to receive at least two written warnings on performance before could be dismissed at end of trial period - According to case law also entitled to fair warning employment coming to an end before trial period ended - Neither requirement met - Respondent accepted had not complied with any notion of procedural fairness leading up to dismissal meeting - Actions not those of fair and reasonable employer - Dismissal unjustified - Remedies - Lost remuneration properly attributable to applicant's decision to undertake full-time study rather dismissal - Difficulties arose when process flawed to extent not possible to ascertain degree of performance deficiencies because obscured by failures of process - Applicant denied alleged errors - Not possible to ascertain whether alleged errors sufficiently serious to justify dismissal or constitute contributory conduct - No basis for reducing nature and extent of remedies - Length of service three months - Retail assistant |
| Result | Application granted ; Compensation for humiliation etc ($2,000) ; Costs reserved |
| Statutes | ERA s103A;ERA s124 |
| Cases Cited | Air New Zealand Ltd v Hudson [2006] ERNZ 415;Nelson Air Ltd v New Zealand Air Line Pilots Association (Inc) [1994] 2 ERNZ 665 |
| Number of Pages | 6 |
| PDF File Link: | aa 365_06.pdf [pdf 69 KB] |