| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 368/06 |
| Hearing date | 28 Sep 2006 |
| Determination date | 06 December 2006 |
| Member | R Arthur |
| Representation | X Hao (in person) ; L Liagren |
| Location | Auckland |
| Parties | Hao v Driving Force Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Respondent claimed applicant not dismissed, but chose to leave at end of trial period - Alternatively argued dismissal warranted because of performance issues - Whether applicant on trial period or permanently employed - No evidence of trial period or fixed term - Employment on on-going basis - No written employment agreement - Sales target discussed not met by applicant - Applicant did not comply with respondent's instruction to make sales calls at beginning of each day - Applicant's car not repaired as asked by respondent - Respondent claimed would shut the door" if sales did not improve - Applicant claimed "all of a sudden" told to go home - Employment relationship not ended by mutual agreement at expiry of trial period - Applicant dismissed - Whether respondent properly put applicant on notice performance inadequate and job at risk - No evidence of required systematic process of addressing performance - Applicant not given real opportunity, faced with prospect of dismissal, to explain performance or address factors inhibiting him from meeting sales targets - Respondent abruptly called end to employment relationship - Post-facto justifications not relevant to whether followed fair process - Dismissal unjustified - Remedies - Although denied opportunity to improve, applicant's performance may well have resulted in termination of employment within few months - Applicant failed to follow directions - Contributory conduct 50 percent - Sales representative - Length of service 6 months" |
| Result | Application granted ; Reimbursement of lost wages ($4,320 reduced to $2,160) ; Compensation for humiliation etc ($2,000 reduced to $1,000) ; Disbursements in favour of applicant (Filing fee)($70) |
| Cases Cited | NZ Food Processing IUW v Unilever New Zealand Ltd [1990] 1 NZILR 35, 45-46;Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315, 332 at [81] (CA);Trotter v Telecom Corporation of New Zealand [1993] 2 ERNZ 659 at 681-2 (EC) |
| Number of Pages | 5 |
| PDF File Link: | aa 368_06.pdf [pdf 73 KB] |