| Summary |
UNJUSTIFIED DISADVANTAGE – Applicant claimed received unjustified warnings from respondent - Respondent provided applicant first written warning after performance issues – Applicant experiencing headaches and when diagnosed learned HIV positive – Applicant claimed diagnosed within days of first warning – Applicant hoped respondent would “ease up” when told diagnosis – Applicant received second written warning 10 days later – Respondent argued talked to applicant about misuse of internet, poor showroom management, and pricing mistake – Authority found first warning justified – Applicant aware through first warning if performance objectives not met would receive final warning – Respondent argued in fortnight after first warning did not see improvement from applicant – Respondent also argued learned applicant had overstated experience in CV – Respondent invited applicant to meeting to discuss one objective in first warning letter, information regarding overstatement of experience, and high levels of sick leave – Applicant claimed knew nothing about CV concerns and letter gave impression follow up on all objectives when told had until end of month to work on objectives – Respondent issued second written warning when claimed applicant failed to contact respondent to arrange time for rescheduled meeting – Authority found as information received gave no specifics on what was overstated could not conclude applicant misrepresented self to respondent – Authority found applicant not given reasonable time to improve – Found no account taken of fact applicant facing serious health problems impacting on ability to address performance concerns – Authority found second warning unjustified – DISCRIMINATION – Applicant claimed disclosure of HIV status soured respondent’s attitude towards him – Authority rejected applicant’s argument accepting witness evidence respondent mistrustful after comments from applicant that would sue respondent – Authority found applicant’s high level of absenteeism not tackled in fair and reasonable way, however, influenced respondent’s view of relationship – Authority found no discriminatory behaviour by respondent – UNJUSTIFIED DISMISSAL – Constructive dismissal – Respondent argued incident where applicant swore after speaking to customer, slammed boxes, and spoke in aggressive manner – Applicant believed unable to provide quote over phone – Applicant claimed humiliated by co-workers behaviour in contacting client again and providing quote over phone – Applicant left workplace when told by respondent co-worker not subject to same requirements – Applicant claimed struggling with stress of work and health problems, and felt no choice but to leave – Authority accepted telephone quote incident humiliating for applicant following unfair second warning and gave applicant reason to believe no longer had trust and confidence in respondent – Authority concluded respondent’s conduct immediate cause of applicant decision to resign – Dismissal unjustified – Remedies – Authority assessed applicant’s contributory conduct at 25 percent for poor work performance, disloyal comments to third party, and outburst distressing to co-workers – Authority could not accept circumstances in which employment ended principal reason for applicant’s decision to go on sickness benefit – Authority not satisfied applicant lost wages as result of grievance – Authority found applicant already difficult time made worse by being unable to exit employment in own time in orderly way – Authority found $8,000 compensation appropriate – Showroom manager |