| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 315/08 |
| Hearing date | 29 Aug 2008 |
| Determination date | 02 September 2008 |
| Member | L Robinson |
| Representation | J Roberts, R Warren ; D Erickson, G Mayes |
| Location | Auckland |
| Parties | Wilson v Pacific Direct Line Ltd |
| Summary | INJUNCTION – Interim reinstatement – Applicant summarily dismissed – Dismissal letter stated applicant’s attitude prejudicially affected respondent’s interests – Authority found applicant had arguable case that not dismissed for serious misconduct justifying summary termination, but for poor performance – Found if so, dismissal likely unjustifiable as applicant not treated fairly, reasonably or in good faith regarding dismissal for poor performance – Found applicant had arguable case – Authority satisfied applicant had means to satisfy undertaking of damages provided – Respondent argued could not be satisfied by award of damages as reinstatement would seriously exacerbate damage applicant caused to internal and external relationships – Applicant argued fact that respondent permitted applicant to work out one week’s notice period conflicted with respondent’s argument of irreparable damage – Authority found significant disputed evidence to be tested in substantive hearing – In interim, found not persuaded respondent had no trust and confidence for good and proper reasons – However, found no doubt applicant without income and satisfaction of continuing employment – Found balance of convenience favoured applicant – Authority considered primacy of reinstatement as grievance remedy – Found to be persuaded that respondent raised poor performance concerns properly, followed due process and acted dispassionately in assessing applicant’s efforts – Found preliminary view that such process not immediately apparent from evidence – Overall justice favoured applicant – Interim reinstatement granted - Fleet manager |
| Result | Application granted ; Costs reserved ; Interim reinstatement granted |
| Main Category | Injunction |
| Statutes | ERA s125;ERA s127 |
| Cases Cited | Air New Zealand Limited v Bisson unreported Shaw J, 17 June 2005, CC 6A/05;NZ Amalgamated Engineering Printing & Manufacturing Union Inc v Air Nelson Limited, unreported, Colgan CJ, 17 June 2007, CC 12/07;Sefo v Sealord Shellfish Ltd [2008] ERNZ 178;Tatupu v Bledisloe New Zealand Limited, unreported, L Robinson, 18 July 2008, AA 262/08;Trotter v Telecom Corporation of New Zealand Limited [1993] 2 ERNZ 659 |
| Number of Pages | 9 |
| PDF File Link: | aa 315_08.pdf [pdf 36 KB] |