| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 144/08 |
| Hearing date | 9 Oct 2008 |
| Determination date | 28 October 2008 |
| Member | D Asher |
| Representation | A Miller ; S Leftley, E Robinson |
| Location | Palmerston North |
| Parties | McLeay v Radius Residential Care Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed received unjustified final warning from respondent – Applicant claimed justification for warning and process unsound – Applicant’s subsequent dismissal unrelated to determination – Respondent argued serious nature of concerns and financial viability risks justified final warning – Respondent sent applicant letter stating concerned applicant failed to send invoices to clients, follow up visits to clients, and respond to emails – Applicant only provided written responses to respondent’s concerns at disciplinary meeting – Respondent issued applicant with final warning – Respondent argued did not accept applicant’s argument were significant delays in invoices reaching applicant – Respondent argued instructed applicant client visits essential – Also argued applicant failed to communicate – Respondent sent applicant action plan following final warning – Applicant filed personal grievance – Respondent argued relied on company’s employee handbook before issuing final warning – Authority found final warning not preceded by any earlier formal warning despite provisions in employee handbook requiring such process – Respondent argued met with applicant prior to final warning and made clear concerned about performance – Authority found respondent’s concerns not clearly and expressly given to applicant prior to letter to applicant – Authority found applicant’s election to reply only in writing fell short of good faith requirement – However, respondent’s failure to properly communicate performance concerns also did not meet good faith obligation – Authority found action plan required before final warning – Applicant unjustifiably disadvantaged – Remedies – Authority assessed applicant’s contributory conduct at 25 percent for breaching good faith obligations – Authority found $3000 compensation after reduction for contributory conduct appropriate – Co-ordinator/manager |
| Result | Application granted ; Compensation for humiliation etc ($4,000 reduced to $3,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s4(1A) |
| Cases Cited | NZ (with exceptions) Food Processing etc IUOW v Unilever NZ Ltd [1990] 1 NZILR 35;Murphy v Steel Tube NZ Ltd unreported Couch, J, 16 Oct 2007, CC 18/07;Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659 |
| Number of Pages | 8 |
| PDF File Link: | wa 144_08.pdf [pdf 29 KB] |