| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 176/08 |
| Hearing date | 2 Apr 2008 |
| Determination date | 13 May 2008 |
| Member | Y S Oldfield |
| Representation | N Carter ; Mr Liu (in person) |
| Location | Auckland |
| Parties | Yang v Liu |
| Summary | UNJUSTIFIED DISMISSAL - No written employment agreement - Applicant summarily dismissed after approximately five weeks of employment - Respondent claimed applicant on three month probationary period - Requirements of s67 Employment Relations Act 2000 not met - Employment period could not be treated as probationary - Respondent claimed applicant misrepresented abilities and was incapable of performing duties - Respondent’s expectations unrealistic when knew of applicant’s qualifications and abilities when employed him - Authority found applicant did not misrepresent himself - Respondent claimed gave applicant two warnings - Authority satisfied applicant informed respondent unhappy with his work but warnings did not meet requirements of procedural fairness - Applicant dismissed without notice or pay in lieu - Respondent provided little explanation and gave applicant no chance to respond - Requirements of procedural fairness not met - Dismissal unjustified - REMEDIES - Respondent unilaterally varied applicant’s salary without consent - Respondent to pay applicant arrears of wages - As no written employment agreement notice period to be inferred - Salary paid weekly, notice period of one week reasonable - Respondent to pay one weeks pay in lieu of notice - Applicant claimed lost remuneration - Little evidence provided that attempted to mitigate loss - Allowed opportunity to submit further evidence - Respondent questioned authenticity of evidence - Authority concluded further investigation meeting to establish validity would put parties to unnecessary additional expense - Authority not satisfied applicant sufficiently mitigated loss - However, Authority accepted would have taken applicant some time to find work - Lost remuneration set at eight weeks - Respondent to pay $4,400 lost remuneration - Termination of employment caused great deal of stress - However, employed for very brief period - Taking both factors into consideration award of $4,000 compensation appropriate - PENALTY - Applicant sought penalty for failure to supply written employment agreement - Other orders made against respondent - Penalty not warranted in circumstances - Legal assistant |
| Result | Application granted ; Payment in lieu of notice ($550) ; Arrears of wages ($210) ; Reimbursement of lost wages ($4,400) ; Compensation for humiliation etc ($4,000) ; Application dismissed (Penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s67;ERA s67(1)(a);ERA s67(3);ERA s124;ERA s128 |
| Number of Pages | 9 |
| PDF File Link: | aa 176_08.pdf [pdf 31 KB] |