| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 90/07 |
| Hearing date | 27 Apr 2007 |
| Determination date | 06 June 2007 |
| Member | G J Wood |
| Representation | G Gowland ; S France |
| Location | Wellington |
| Parties | Kessell v Harris Transport (1974) Ltd |
| Summary | UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Poor performance - Summary dismissal - Applicant responsible for scheduling transport jobs and organising staff - Received three written warnings for forgetfulness and mismanagement of jobs - Delay in issuing of third warning - Manager unaware applicant had diabetes - Often neglected to take medication, resulting in forgetfulness - Manager angry with applicant after day's work lost - Applicant called in sick by email next day - Manager sent email terminating employment due to performance issues" - Respondent claimed in statement in reply dismissed applicant for serious misconduct - Evidence showed applicant clearly dismissed for poor performance - Basic tenets in Trotter v Telecom Corporation of New Zealand Ltd (cited below) not followed - Test of serious or repeated failure deliberateness - Manager acknowledged problem not any deliberate failure to follow instructions - Reasons for warnings raised cursorily if at all - No fair opportunity to answer respondent's concerns - Disciplinary meeting should have been held - Applicant may have disclosed condition and altered manager's perspective - Whole disciplinary and dismissal process fundamentally flawed given applicant had minimal involvement in it - Not given clear information what improvements required, how improvement would be measured or time frames to make them - Dismissal unjustified - Remedies - Applicant responsible for proper management of diabetic condition - Respondent not required to pay for results of applicant's illness on its business - Could have alleviated matters if had been informed of condition - Applicant responsible for many of manager's concerns - However, not responsible for gross breaches of fair and reasonable treatment - Contributory conduct 33.33 percent - PENALTY - Applicant claimed penalties for breach of contract and good faith - Penalties not to be added to remedies for unjustified dismissal in normal course of events - Justice of case met by lost wages and compensation awards - Operations Manager" |
| Result | Application granted ; Reimbursement of lost wages ($9,750 reduced to $6,500) ; Compensation for humiliation etc ($12,000 reduced to $8,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Trotter v Telecom Corporation of New Zealand [1993] 2 ERNZ 659 |
| Number of Pages | 7 |
| PDF File Link: | wa 90_07.pdf [pdf 30 KB] |