| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 332/08 |
| Hearing date | 7 Jul 2008 |
| Determination date | 23 September 2008 |
| Member | R A Monaghan |
| Representation | V Jefferson (in person) ; L Campbell |
| Location | Auckland |
| Parties | Jefferson v Enduring Sales Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Applicant claimed unjustifiably dismissed - Respondent denied dismissal, claiming applicant casual worker - Authority found applicant part time employee, not casual - Found applicant expected to work regular hours - Respondent provided insufficient evidence to suggest applicant casual employee - Applicant’s evidence preferred on matters involving credibility - Respondent’s director (“L”) became concerned about applicant’s performance - Dispute between applicant and L as to number and timing of meetings about applicant’s performance and need for applicant’s services - Outcome of meetings that L told applicant “had to go” - Respondent offered applicant no further work - L claimed wanted employee available to work different hours and business needs changing, so fewer telemarketers required - Respondent provided little evidence in support of claim and Authority’s request for further information not adequately met - Authority did not accept no work available for applicant - Authority found likely applicant dismissed for performance issues with respondent attempting to rely on allegedly casual nature of employment after event - Performance concerns raised with applicant but not told of consequences on employment - Applicant given no opportunity to improve - Dismissal unjustified - Remedies - Authority not persuaded applicant suffered lost remuneration - Authority accepted applicant suffered some injured feelings - However, short term of employment with respondent and applicant retained employment with another employer - Compensation of $3,000 appropriate - PENALTY - Dispute between parties as to whether applicant provided with written employment agreement (“EA”) - Authority found applicant not provided with written EA - Had failure been oversight acknowledged by respondent Authority might have exercised discretion not to award penalty - However, respondent maintained written EA provided - Respondent ordered to pay penalty for failure to provide written EA - Applicant claimed cumulative effect of respondent’s actions resulted in breach of good faith - However, respondent’s actions did not warrant penalty - Telemarketer |
| Result | Application granted (Unjustified dismissal) ; Compensation for humiliation etc ($3,000) ; Application granted (Penalty)($500)(Payable to Crown) ; Application dismissed (Penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1);ERA s4A;ERA s63A;ERA s63A(2);ERA s63A(3) |
| Number of Pages | 12 |
| PDF File Link: | aa 332_08.pdf [pdf 37 KB] |