| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 187/09 |
| Hearing date | 18 Jun 2009 - 19 Jun 2009 (2 days) |
| Determination date | 28 October 2009 |
| Member | H Doyle |
| Representation | P James ; M Smyth |
| Location | Christchurch |
| Parties | Christey v Searell & Co Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably disadvantaged by respondent when policy changed regarding laptop, not invited to race night, old clients deleted from system, removal of remote access, and taking away of work flow – Applicant claimed subsequently unjustifiably dismissed – Respondent conceded dismissal procedurally unjustified – Applicant’s position description in employment agreement (“EA”) stated applicant reported to director (“W”) and required to have functional relationships with other staff – Applicant not subject of oral or written warnings during employment – Found applicant had two performance appraisals concluding no concerns with performance – W argued early concerns about applicant upsetting staff by changing systems – Authority found applicant unaware employment at risk because of compatibility or performance issues until dismissal meeting – Former owner and consultant of respondent (“S”) took over respondent when W commenced maternity leave – W argued never considered leaving applicant to manage respondent because clear applicant did not have respect of staff – Authority satisfied applicant not aware why not left in charge of respondent – S argued concerned about applicant’s fee income, methodology for recruiting clients, and time wasting – S argued applicant not “right fit” for respondent and incompatible with team – Authority not satisfied S raised matters with applicant as specific performance concerns but accepted issues discussed about type of clients applicant should bring in, in terms of fee generation – EA required respondent give applicant two written warnings prior to termination in cases of poor performance – S expressed concern to W that applicant should leave – Authority found S raised issues with applicant who felt being berated by S but S unaware causing applicant discomfort – Applicant arranged meeting with W to discuss concerns – Subsequently applicant sent firm-wide email apologising for behaviour – Authority found clear from email W’s concerns did register with applicant who sent open and transparent email apologising to team – W argued email too late and generally insufficient – Applicant invited to meeting but not advised of issues to be discussed or told to bring representative – No dispute applicant dismissed during meeting – Applicant argued respondent should follow three step performance process in EA – Authority accepted applicant’s evidence did not expect meeting to be about termination of employment – W made announcement that applicant leaving – S recommended applicant hand in security card – Applicant met again with S – S agreed would arrange preparation on termination proposal and parties to meet again – Subsequently applicant received notice of termination from respondent – Applicant picked up draft termination agreement from respondent – Applicant raised personal grievance and no agreement entered between parties – Authority not satisfied advising applicant could no longer bring in personal laptop but still providing access to another laptop unjustified disadvantage – Found applicant not disadvantaged by not receiving invitations to race night, stopping of remote access, and deletion of old clients from system – Authority found respondent did not deliberately shut down applicant’s work flow – Authority found reasons for applicant’s dismissal primarily that applicant perceived as incompatible – Authority satisfied applicant not properly warned of incompatibility – Authority not satisfied W made staff concerns about applicant clear to applicant – Found fair and reasonable employer would not have simply assumed applicant knew effect having on staff – Found performance issues not raised with applicant in accordance with EA – Authority found procedural defects conceded linked to substantive failures in terms of incompatibility and poor performance for dismissal – Dismissal unjustified – REMEDIES – Authority found applicant attempted to mitigate loss after dismissal – Found failure to reach settlement not factor in terms of failure to mitigate – Authority took into account applicant’s health concerns in exercising discretion to order greater than 3 months lost remuneration – Found 4 months lost wages fair award in circumstances – Applicant claimed hurt and humiliated, not given opportunity to go through process in EA and dismissal impacted on professional standing and reputation – Applicant’s wife (“M”) claimed applicant had difficulty carrying out simple tasks and became distrustful of others – Claimed applicant showed signs of becoming delusional and believed neighbours conspiring against him – Applicant prescribed medication by doctor to treat and control paranoia – M claimed applicant had never previously displayed any mental health issues – Consultant psychiatrist (“P”) told Authority that applicant’s symptoms would be diagnosed as adjustment disorder with psychotic features – P opinion applicant’s psychological disturbance direct result of identifiable stressor sufficient to significantly effect functioning but not reaching depressive anxiety or full psychotic condition – Found identifiable stressor was dismissal – Found evidence did not support any psychological difficulties prior to dismissal – Authority found had legal advice been available to applicant prior to dismissal matter likely to have been resolved earlier – Authority found $18,000 compensation appropriate – No contributory conduct – COUNTERCLAIM – Respondent’s counterclaim rejected – Accountant/Practice Manager |
| Result | Application granted (Dismissal) ; Applications dismissed (Disadvantage) (Counterclaim) ; Reimbursement of lost wages (10 weeks) ; Compensation for humiliation etc ($18,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA s103A;ERA s128(3);ERA s123;ERA s123(1)(c)(i) |
| Cases Cited | Betta Foods (NZ) Ltd v Briggs [1997] ERNZ 456;Commissioner of Police v Hawkins [2009] NZCA 209;NCR (NZ) Corporation Ltd v Blowes [2005] 1 ERNZ 932;Simpsons Farm Ltd v Aberhart [2006] ERNZ 825 |
| Number of Pages | 25 |
| PDF File Link: | ca 187_09.pdf [pdf 75 KB] |