| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 256/07 |
| Hearing date | 24 May 2007 |
| Determination date | 22 August 2007 |
| Member | A Dumbleton |
| Representation | A Collins ; B Henry, P Witehira |
| Location | Auckland |
| Parties | Dams v Powerbeat International Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant granted leave to raise grievance out of time – Applicant rang office and advised co-workers would be taking day off to arrange vehicle repairs – Co-worker reported applicant’s absence to manager – Applicant returned to work next day and requested meeting with manager – Meeting ended after ten minutes and applicant left premises – Applicant never returned to workplace – Parties did not communicate for three months until respondent received letter of notice raising personal grievance – Respondent claimed applicant abandoned employment – Claimed when questioned about absence applicant gave dishonest answer and stormed out of meeting – Respondent also claimed that applicant said “easier to be on dole” – Applicant claimed respondent did not accept reason for absence – Applicant claimed respondent said “did not want to see him anymore” and “would not be paying any further wages” – Inconsistent evidence given by respondent – During investigation respondent acknowledged that had suggested applicant inadequate as could not fix car – Authority satisfied respondent dominated meeting and spoke without too much thought – Applicant took respondent’s remarks as suggesting incompetence and was an unsuitable employee – Respondent’s denial that nothing said about ceasing to pay applicant rejected – Authority recognised importance of job to applicant – Applicant had previously experienced trauma of redundancy – After dismissal made sacrifice to be away from family in order to be employed – Fact respondent made no effort to contact applicant after dismissal indicated sending away – Respondent satisfied no contact made because applicant no longer employee – Likely respondent did send applicant away and applicant led to believe had been dismissed – Respondent also alleged attempt at extortion through grievance process – Dismissal unjustified – No deceit involved in absence – Authority also determined fixed term ineffective – Parties expressly agreed employment would end at expiry of three month period – Fixed term intended to measure whether applicant suitable for job – Under s66(3)(c) Employment Relations Act 2000 measuring applicants’ suitability for job not permissible reason for fixed term – Remedies – No contributory conduct - Compensation appropriate for humiliation caused by respondent’s comments that applicant preferred life on dole and incompetent to fix car – Research and development electronics engineer |
| Result | Application granted ; Reimbursement of lost wages (3 months) ; Compensation for humiliation etc ($8,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s66(3)(c);ERA s114;ERA s114(5);ERA s115;ERA s128 |
| Cases Cited | Clarke v Norske Skog Tasman Ltd [2003] 2 ERNZ 213;Schneller v Ranworth Healthcare Ltd unreported, Colgan J, 5 June 2007, AC 33/07 |
| Number of Pages | 20 |
| PDF File Link: | aa 256_07.pdf [pdf 71 KB] |