| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 97/09 |
| Hearing date | 16 Sep 2008 - 27 Nov 2008 (4 days) |
| Determination date | 30 March 2009 |
| Member | L Robinson |
| Representation | D Smyth ; G Riach |
| Location | Auckland |
| Parties | Malan v Zealandia Horticulture Ltd |
| Summary | JURISDICTION - Whether employee or independent contractor - Applicant invoiced respondent through limited liability company - Authority found arrangement solely for tax purposes - Found no contract between respondent and applicant’s company - Found applicant an employee - UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant called to meeting where suspended - Applicant given no prior notification of suspension - Written confirmation of suspension outlined four serious management issues - Respondent claimed applicant misrepresented respondent’s directors, issues about staff management, recruitment process issues and other management issues - Letter advised applicant to contact management to arrange meeting to discuss issues - Applicant advised respondent was waiting to hear if representative was free - When respondent contacted applicant’s representative informed representative no longer acting for applicant - Applicant’s new representative faxed respondent advising applicant did not agree to proposed meeting time - Respondent did not receive fax - Respondent attempted to contact applicant when did not attend meeting - Respondent concluded applicant’s lack of communication was deliberate and terminated applicant’s employment - Authority found not reasonable to unilaterally fix meeting when knew applicant seeking advice - Found not reasonable to proceed once knew first representative no longer acting for applicant - Authority found respondent entitled to conclude applicant had misrepresented respondent’s directors - Found issues around staff management not established - Found issues not raised previously - Found recruitment process issues not established - Found other management issues had no substance - Found issues were performance issues and should have been treated as such - Found respondent not entitled to find serious misconduct - Found respondent’s actions not those of fair and reasonable employer - Dismissal unjustified - Remedies - Authority found applicant conveying inaccurate information to employee contributed to situation giving rise to grievance - Found 33 percent contributory conduct - Applicant sought reinstatement - Authority found reinstatement not impracticable - Applicant to be reinstated within 28 days of date of determination - Applicant failed to sufficiently mitigate loss - No reimbursement of lost wages - Applicant claimed hurt and humiliated by dismissal - Taking into account applicant’s evidence, length of service, and nature of grievance Authority awarded $15,000 compensation reduced to $10,000 - General Manager |
| Result | Application granted ; Reinstatement ordered ; Compensation for humiliation etc ($15,000 reduced to $10,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Number of Pages | 10 |
| PDF File Link: | aa 97_09.pdf [pdf 35 KB] |