| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 154/08 |
| Hearing date | 4 Dec 2007 - 15 Feb 2008 (2 days) |
| Determination date | 24 April 2008 |
| Member | Y S Oldfield |
| Representation | D Cowan ; P Wickes |
| Location | Auckland |
| Parties | Bettany v Masonry Design Solutions Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant initially employed on fixed term for three months – Respondent argued wanted to give applicant permanent position conditional on performance improving – Respondent argued applicant’s performance worsened and level of internet use amounted to gross misconduct – Respondent put concerns to applicant – Respondent summarily dismissed applicant when unhappy with response to concerns – Applicant argued confirmed unconditionally by respondent in permanent role at meeting – Applicant did not dispute performance concerns raised by respondent but did not get impression issues serious - Respondent argued necessary for applicant’s work to be redone – Applicant argued output improving and new to software used by respondent – Authority not satisfied permanent position being offered conditional on improvement – Found reasonable for applicant to believe respondent offering permanent employment on condition freelance work given up – Found termination of permanent employment and not early termination of fixed term – Respondent argued telling applicant about performance concerns a warning if matters not addressed job in jeopardy – Authority found no warning – Found respondent failed to make clear job in jeopardy if performance concerns not remedied – Authority found applicant’s excessive level of internet use not serious misconduct – Authority accepted internet use should have been subject of warning – Found respondent’s failure to warn applicant job in jeopardy if performance not improved made summary dismissal unjustified – Remedies – Authority satisfied applicant’s timekeeping unacceptably lax and work output adversely affected by internet use beyond reasonable level – Authority found applicant’s actions contributed significantly to situation giving rise to personal grievance – Found applicant’s failure to offer explanation caused respondent to lose confidence and led to dismissal decision – Found contributory conduct meant remedies to be reduced by 50 percent – Authority found $2,500 compensation appropriate with deduction – COUNTERCLAIM – BREACH OF CONTRACT – Respondent claimed applicant’s drafting work so full of errors that had to be redone – Authority found work produced by applicant unacceptably shoddy and responsible course of action was for work to be redone – However, found respondent not established applicant engaged in conduct knowing would cause respondent loss – Found breach of contract not made out – Found respondent entitled to recover costs for unauthorised phone calls made by applicant – Architectural draughtsperson |
| Result | Application granted (Disadvantage) ; Reimbursement of lost wages ($5,362.50 reduced to $2,681.25) ; Compensation for humiliation etc ($5,000 reduced to $2,500) ; Application partly granted (Counterclaim) ; Recovery of monies ($109.37) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124;Employment Contracts Act 1991 s40(2) |
| Cases Cited | Medic Corporation Ltd v Barrett [1992] 3 ERNZ 977;Paykel Limited v Ahlfeld [1993] 1 ERNZ 334 |
| Number of Pages | 13 |
| PDF File Link: | aa 154_08.pdf [pdf 43 KB] |