| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 216/09 |
| Hearing date | 29 Jun 2009 |
| Determination date | 01 July 2009 |
| Member | R A Monaghan |
| Representation | J Shahi (Applicant in person) ; A Sipka |
| Location | Auckland |
| Parties | Shahi v Digital Communications Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Fixed term employment – Redundancy – Applicant claimed unjustifiably dismissed when employment terminated early – Respondent argued employment terminated for redundancy by agreement – Employment agreement (“EA”) provided applicant covering permanent employee’s (“D”) parental leave, with employment to end on set date – Respondent agreed to D’s request for early return from parental leave – Respondent’s decision influenced by applicant’s alleged poor performance – Applicant claimed respondent assured applicant employment to continue until previously agreed date - Respondent argued advised applicant employment to be terminated in four weeks because applicant unable to perform one of required tasks and no alternative work available – Respondent argued applicant agreed to terminate employment early on that basis – Authority found extensive conflicts in evidence – Found even on respondent’s account, dismissal unjustified – Found applicant’s inability to perform certain tasks not redundancy situation – Found position still existed – Found performance concerns not addressed fairly and reasonably – Found no agreement to early termination – Found applicant faced with statement about early termination of employment, and could only acquiesce – Authority noted although respondent did not rely on Parental Leave and Employment Protection Act 1987, applicant not given written notice that D may return early in particular circumstances – Dismissal unjustified – REMEDIES – Applicant entitled to reimbursement of lost wages, less earnings from part time employment, until planned expiry of fixed term – Authority found respondent exerted pressure on applicant to sign document acknowledging final pay – Found respondent became abusive when applicant refused to sign document stating would not take matter to court or further - Found applicant intimidated, belittled and humiliated – Found conduct aggravated personal grievance - $5,000 compensation appropriate - PENALTY – Applicant sought penalty for breach of EA – Authority found breaches claimed sufficiently addressed in grievance – Penalty declined - Office assistant |
| Result | Application granted (dismissal) ; Application dismissed (penalty) ; Reimbursement of lost wages ($2,900) ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s66;Parental Leave and Employment Protection Act 1987 s39;Parental Leave and Employment Protection Act 1987 s45;Parental Leave and Employment Protection Act 1987 s48 |
| Number of Pages | 6 |
| PDF File Link: | aa 216_09.pdf [pdf 23 KB] |