| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 434/08 |
| Hearing date | 22 Sep 2008 |
| Determination date | 22 December 2008 |
| Member | R Arthur |
| Representation | C Patterson ; L Campbell |
| Location | Auckland |
| Parties | Shale v Enduring Sales Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Whether personal grievances of disadvantage and unjustified dismissal raised within 90 day period – Applicant sent home by supervisor (“C”) after being too upset to work – C advised applicant not needed “till further notice” – Applicant not contacted for work although respondent advertised for staff – Applicant claimed partner (“W”) delivered respondent first letter – First letter sought clarification of employment status and raised personal grievance if concerns not addressed – Respondent claimed letter not received due to mistaken identity by W – Applicant sent second letter inviting respondent to mediation – Second letter referred to first letter – Respondent made no enquiries about first letter – Authority found first letter sufficiently raised grievance of unjustified dismissal to met s114 Employment Relations Act 2000 –W’s evidence gave respondent first letter preferred – Found if first letter not received, second letter showed existence of first – Unjustified dismissal grievance raised – Authority found disadvantage not sufficiently raised – Applicant claimed raised misconduct by C to respondent – Found disadvantage not raised in first letter – Found applicant’s case weak – Disadvantage not raised – UNJUSTIFIED DISMISSIAL – Applicant claimed being “sent away” amounted to unjustified dismissal – Respondent claimed applicant “casual worker” and no intention to dismiss – Authority found applicant permanent part-time worker – Found applicant worked regular shifts and employment relations with C showed part-time employment – Noted employment agreement not definitive of “real nature” of relationship – Found respondent instructed C to advise applicant of no further work – Conflict of evidence – Found practice of contacting absent employees to inquire whether still interested in work – Found applicant not contacted due to respondent’s concern about applicant being in “clique” that “challenged” C – Found failure to contact applicant and discuss concerns unreasonable - Unjustified dismissal – REMEDIES – No contributory conduct – Four weeks lost wages reimbursed – Not all reasonable steps to mitigate loss taken - $3,000 compensation appropriate – Acknowledged distress suffered but no long term difficulties– Telemarketer |
| Result | Application granted (Unjustified dismissal) ; Application dismissed (disadvantage) ; Reimbursement of lost wages ($2,000) ; Compensation for humiliation etc ($3,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s114 |
| Cases Cited | Clark v Nelson Marlborough Institute of Technology unreported, Couch J, 19 August 2008, CC 12/08 |
| Number of Pages | 9 |
| PDF File Link: | aa 434_08.pdf [pdf 31 KB] |