| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 133/09 |
| Hearing date | 20 Mar 2009 |
| Determination date | 30 April 2009 |
| Member | J Crichton |
| Representation | D Erickson ; B Quarrie |
| Location | Kaitaia |
| Parties | Brake v Bray Cormack and Dowe |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed following alleged poor interpersonal skills – Respondent argued dismissal justified and proper procedures followed – Applicant declined tasks believed to be illegal or improper – Respondent claimed work ethics not applicant’s concern – Applicant argued did not want to compromise professional obligations – Respondent sent letter outlining applicant’s refusal to complete tasks and poor interpersonal skills – Applicant continued to decline work believed to be improper – Respondent subsequently alleged applicant intimidated co-worker by “looming” over co-worker – Respondent insensitively advised applicant had bad body odour – Client alleged harassment by applicant - Respondent advised applicant taken off client’s project without disclosing allegation – Second letter raised “serious concerns” regarding poor interpersonal skills and invited applicant to meeting – Applicant not warned meeting disciplinary meeting - Applicant responded to each issue raised without response from respondent – Respondent claimed applicant failed to accept responsibility – Applicant dismissed – Authority found dismissal procedurally and substantively unjustified – Found allegations of harassment, complaints from clients and performance deficits not disclosed to applicant therefore no opportunity to answer allegations – Found not warned of disciplinary meeting - Found respondent’s failure to exchange views at meeting damaged employment relations further and exacerbated its procedural inadequacies – Found applicant’s refusal to perform work ethically challenging or unlawful not basis for dismissal – Found applicant not fairly advised behaviour caused concern therefore allegations disclosed after dismissal not grounds to retrospectively justify dismissal – Dismissal unjustified – REMEDIES – Found no contributory conduct – Applicant not advised of allegations therefore no opportunity to correct conduct – Found $9,000 compensation appropriate – Applicant suffered emotional trauma – Contribution to lost wages of $20,000 – Applicant unsuccessful obtaining new employment and started own business – New business not profitable – Found respondent not liable for applicant’s lack of success however entitled to contribution – Accountant |
| Result | Application granted ; Contribution to lost wages ($20,000)(17 months) ; Compensation for humiliation etc ($9,000) ; Disbursements in favour of applicant ($70)(Filing fee) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s128(2) |
| Number of Pages | 9 |
| PDF File Link: | aa 133_09.pdf [pdf 33 KB] |