| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 98/09 |
| Hearing date | 28 May 2009 |
| Determination date | 23 July 2009 |
| Member | G J Wood |
| Representation | P Woodhead ; M French |
| Location | Wellington |
| Parties | Woodhead v Resene Paints Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Poor performance – Applicant claimed unjustified final written warning and dismissal – Respondent argued actions justified given applicant’s refusal to engage in final disciplinary process – Applicant made substantial work errors raising performance concerns – Respondent requested applicant’s work be supervised and checked – Respondent’s manager (“T”) requested applicant attend disciplinary meeting to discuss performance and notified written warning a possible outcome – First disciplinary meeting – T advised applicant accuracy level poor and parties agreed to 95 percent accuracy target – Applicant issued with final written warning for poor performance – Warning letter raised new allegation applicant worked unauthorised overtime – Second disciplinary meeting – Applicant attended meeting while on sick leave – T concluded applicant’s explanations adequate and extended final warning – Applicant received further letter alleging substantial errors made and requested third disciplinary meeting – Applicant’s representative sent “without prejudice” email to respondent raising possibility of resignation – Applicant’s representative advised respondent applicant unable to attend meeting due to illness – T received reports applicant regularly at bar – T requested applicant give written explanation for allegations however applicant refused – Applicant dismissed – Authority found “without prejudice” email admissible as significant differences between parties over whether respondent’s actions justified to constitute dispute – No privilege - Found final warning and first disciplinary meeting justified as applicant consistently made substantial errors – Found respondent entitled to reject applicant’s explanations – Found 95 percent target rate reasonable and objective performance assessment method – Found respondent entitled to conclude applicant unable to meet target after target level consistently not met – Found respondent generously accepted applicant’s explanations at second disciplinary meeting – Found no disparity of treatment – Found new allegations raised in final warning letter unfair however, not fatal to procedural fairness – Found conclusion applicant’s conduct constituted poor performance justified – Found respondent entitled to doubt genuineness of applicant’s illness after receiving reports applicant attended bar and applicant attended second meeting on sick leave - Found dismissal justified - Found even if dismissal unjustified, no compensation awarded as applicant failed to mitigate loss by not seeking new employment and no evidence of humiliation – Found alternatively, high contributory fault therefore any remedies awarded would be minimal – Colour Matcher |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Bayliss Sharr & Hansen v MacDonald [2006] ERNZ 1058;Northern Club Auckland v North Hotel etc IUOW [1989] 1 NZLIR 764;NZ (with exceptions) Food Processing etc v Unilever New Zealand Ltd [1990] 1 NZILR 35;Trotter v Telecom Corporation of NZ Ltd [1993] 2 ERNZ 659 |
| Number of Pages | 15 |
| PDF File Link: | wa 98_09.pdf [pdf 50 KB] |