| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 52/08 |
| Hearing date | 11Oct 2007 - 8 Nov 2007 (3 days) |
| Determination date | 19 February 2008 |
| Member | A Dumbleton |
| Representation | R Pool ; B Fleming |
| Location | Auckland |
| Parties | Allen v Riversun Nursery Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant summarily dismissed following investigation into five alleged instances of misconduct - Respondent advised applicant five allegations of serious misconduct being made against her - Allegations in relation to reviewing and reporting on outbreak of viral infection in imported grapevine stock, misleading one of respondent’s directors that conference registration completed when wasn’t, managing recruitment of staff, obtaining approval of advertising copy, and not complying with instructions for creation and updating of job descriptions - One of respondent’s directors (“P”) investigated allegations - P concluded serious misconduct in respect of first two allegations, misconduct in second two, while fifth allegation not misconduct but raised performance issues - Applicant given opportunity to make submissions on proposed summary dismissal - Applicant submitted P’s conclusions wrong, denied any misconduct and at most performance issues - Taking applicant’s submissions into account P concluded summary termination “only appropriate outcome” - Authority found applicant never received explicit warning during employment period - Respondent claimed discussions about expected standard of behaviour and conduct were sufficient warnings - Authority found discussions not frequent or explicit enough to constitute warnings - Authority found respondent failed to organise applicant’s performance review, despite requirement in employment agreement - Found applicant deprived of opportunity of knowing reasonable and lawful requirements of performance through formal warnings or performance reviews - Dismissal not justified by conduct in relation to two allegations found to be serious misconduct as conclusions unreasonable and respondent did not act as fair and reasonable employer - Summary dismissal unjustified - Remedies - No contributory conduct found - Applicant sought reinstatement - Authority found reinstatement would be impractical in all circumstances - Authority noted respondent’s restructuring meant applicant’s position likely to be surplus to requirements - Reinstatement declined - Authority satisfied applicant upset by dismissal and anxious about future comparable employment prospects - Compensation of $10,000 appropriate - Satisfied reasonable attempts made to mitigate loss - If not dismissed employment likely to have ceased when respondent restructured - Award of seven months lost wages appropriate - General Manager |
| Result | Application granted ; Reimbursement of lost wages (7 months) ; Compensation for humiliation etc ($10,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Cases Cited | Air New Zealand Ltd v Hudson (2006) 3 NZELR 155;Dearns v Eagle Techonology Group Ltd [2002] 1 ERNZ 529;Donaldson and Youngman t/a Law Courts Hotel v Dickson [1994] 1 ERNZ 920;Murphy v Steel Tube NZ Ltd unreported Couch, J, 16 Oct 2007, CC 18/07;Paykel Ltd v Ahlfeld [1993] 1 ERNZ 334;Timu v Waitemata District Health Board [2007] ERNZ 419 |
| Number of Pages | 28 |
| PDF File Link: | aa 52_08.pdf [pdf 84 KB] |