| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 269/09 |
| Hearing date | 21 Apr 2009 |
| Determination date | 10 August 2009 |
| Member | Y S Oldfield |
| Representation | M Steele ; M Ferris |
| Location | Auckland |
| Parties | Thompson v Dundee Lumber Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Poor performance - Respondent’s director (“F”) claimed applicant on three month trial period - Respondent claimed despite receiving many verbal warnings applicant failed to reach satisfactory level of competence so summarily dismissed - Applicant claimed no written employment agreement (“EA”) provided and not told on probation - Applicant claimed still learning job and denied warned job at risk - Authority found no evidence applicant given EA - Found without EA respondent could not rely on existence of probationary period unless applicant elected to treat it as effective, which had not - Found respondent could not rely on existence of probationary period as part of justification for dismissal - On day of dismissal, F told applicant unhappy with work in terms which F admitted became abusive and personal, although F claimed applicant also aggressive - After exchange applicant set off walking back to respondent’s factory some kilometres from where had been working - F followed in vehicle and picked applicant up - Back at factory F told applicant was dismissed and would receive two weeks pay - F subsequently declined to pay two weeks pay - Respondent relied on verbal warnings which were disputed - No specific detail about warnings provided - Authority not satisfied applicant properly warned - Authority found notice generally required for dismissal for poor performance - Found applicant summarily dismissed - Dismissal unjustified - Remedies - No contributory conduct - Applicant found alternative employment on same pay rate seven weeks after dismissal - Reimbursement of seven weeks lost wages awarded - Applicant upset by F’s conduct, in particular personal and racist abuse directed at him - Authority weighed those factors against relatively short period of employment, and fact applicant considering resignation on day of dismissal - $3,000 compensation awarded - PENALTY - Applicant’s claims for penalties not particularised - Authority inferred applicant sought penalties for failure to provide EA, reasons for dismissal, and employment records - Authority accepted F’s evidence applicant’s EA “fell through the cracks” - Authority not satisfied penalty warranted for failure to provide EA - Authority found no jurisdiction to award penalty for failure to provide reasons for dismissal - Authority not satisfied penalty warranted for failure to supply applicant with records, as applicant not prejudiced by failure - Truck driver/Fork hoist operator |
| Result | Application granted (Unjustified dismissal) ; Reimbursement of lost wages ($5,040) ; Compensation for humiliation etc ($3,000) ; Application dismissed (Penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s63;ERA s63A;ERA s65;ERA s67;ERA s120;ERA s124;ERA s128;ERA s130;ERA s133(1);ERA s133(1)(b) |
| Number of Pages | 9 |
| PDF File Link: | aa 269_09.pdf [pdf 28 KB] |