| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 53/09 |
| Hearing date | 28 Jan 2009 |
| Determination date | 19 February 2009 |
| Member | J Crichton |
| Representation | E Hartdegen ; P Tremewan |
| Location | Auckland |
| Parties | Louw v Brian Anderson Accounting Services Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Poor performance – Applicant claimed constructively dismissed following series of unjustified warnings and unlawful deduction in wages – Respondent claimed applicant resigned during performance management appraisals – Applicant employed as trainee accountant – First meeting held due to poor performance – Second meeting held one month later - Respondent made clear applicant’s performance unsatisfactory at second meeting – First written warning issued following day – Warning provided “You are advised that your standard of work must improve considerably or your position will be terminated” - Conflict of evidence whether applicant “tendered” or “offered” resignation on both occasions – Three days later applicant received 50 percent wage deduction – Respondent claimed applicant consented to deductions because no concerns were raised – Two days later applicant received difficult assignment – Applicant claimed assignment was to set applicant up to fail – Applicant took one week unpaid study leave and arrived back to workplace to find second warning letter – Second warning claimed applicant misrepresented abilities, performance reviewed for the next two months and continued poor performance would result in final written warning – Applicant raised personal grievance – Authority found respondent’s breach of duty so severe that resignation was reasonably foreseeable – Found no misrepresentation of professional abilities by applicant– Found poor decision to hire applicant when no background checks were done – Found no tendering or offer of resignation made – Found resignation discussed in the context of applicant’s performance on one or both meetings – Found applicant put on notice of performance problems and effect on employment relations at second meeting – First meeting only informally criticised applicant’s performance but criticism not presented as problematic for employment relations - Found performance management appraisal inadequate, informal, undocumented and incapable of proper performance evaluation – Authority preferred applicant’s evidence no performance review was carried out - Found both written warnings failed to comply with performance management rules – Specific performance concerns not identified, no remedial course of action suggested, no timeline for remedy – Authority acknowledged serious deficiencies in first warning “fundamentally damaged employment relations” and second warning was “final straw” leading to termination of employment – Found no written consent to salary deductions therefore unlawful - Dismissal unjustified – REMEDIES – Found 35 percent contributory conduct – 5 percent contribution for failure to raise objections regarding respondent’s conduct and 30 percent for failure to give required eight weeks notice for resignation – Found $6,250 compensation appropriate – Contribution to lost wages of $7,200 – No reimbursement for chartered accountant examination fee - Interest payable on holiday pay arrears - PENALTIES – Applicant sought penalty for unlawful deduction from salary and withholding of annual holiday pay – Global penalty award made payable to applicant – Accountant |
| Result | Applications granted ; Reimbursement of lost wages ($7,200 reduced to $4,680) ; Compensation for humiliation etc ($6,250 reduced to $4,062) ; Interest (6%) ; Penalty ($2000)(Unlawful deduction)(Payable to Applicant) ($3000)(Withholding of holiday pay)(Payable to Applicant) ; Disbursements in favour of applicant ($70)(Filing fee) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 |
| Number of Pages | 22 |
| PDF File Link: | aa 53_09.pdf [pdf 68 KB] |