| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 135/07 |
| Hearing date | 28 Nov 2006 |
| Determination date | 01 May 2007 |
| Member | R A Monaghan |
| Representation | C Meechan ; S Dench |
| Location | Auckland |
| Parties | Hardgrave v CustomKit Buildings Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Poor performance - Respondent claimed applicant resigned prematurely when performance and commitment issues raised - Applicant injured knee and not able to work - Manager found several serious mistakes in applicant's work - Meeting held to discuss mistakes - Applicant claimed needed more training and assistance, and gave no explanation for mistakes - Manager reasonably concluded applicant unresponsive and unapologetic - Advised applicant to consider resigning - Manager made angry statements to applicant told him he wanted to keep job - Another meeting held to discuss mistakes and applicant's unwillingness to work extra hours - Manager suggested applicant return on trial period - Applicant later advised would not return to work - Manager went beyond merely expressing anger, frustration or inconsiderate conduct - When first raised concerns was open to possibility of explanation - Should have used performance management or disciplinary process and kept open mind - Instead, raised prospect of resignation - Unlikely manager's mind open to applicant continuing employment - Viewed employment relationship as having no future - Repudiatory conduct - Discussion of trial period not sufficient to rescue employment relationship - Constructive dismissal - Given finding, not necessary to consider disadvantage grievance or lack of good faith claims - Remedies - Large number of unexplained mistakes - Contributory conduct 50 percent - Claim applicant would have been justifiably dismissed anyway too speculative - Grievance a causative factor of applicant's major clinical depression |
| Result | Application granted ; Reimbursement of lost wages ($26,000 reduced to $13,000) ; Compensation for humiliation etc ($20,000 reduced to $10,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW [1994] 1 ERNZ 168;NZ Woollen Workers IUOW v Distinctive Knitwear NZ Ltd [1990] 2 NZILR 438 ; (1990) ERNZ Sel Cas 791;Telecom NZ Ltd v Nutter [2004] 1 ERNZ 315;Trotter v Telecom Corporation of NZ Ltd [1993] 2 ERNZ 659;Wellington, Taranaki & Marlborough Clerical etc IUOW v Greenwich V.V. & C.F. (t/a Greenwich & Associates Employment Agency & Complete Fitness Centre) [1983] ACJ 965 ; (1983) ERNZ Sel Cas 95 |
| Number of Pages | 17 |
| PDF File Link: | aa 135_07.pdf [pdf 84 KB] |