| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 6/10 |
| Hearing date | 12 Jan 2010 |
| Determination date | 14 January 2010 |
| Member | D Asher |
| Representation | M McAleer ; no appearance |
| Location | Napier |
| Parties | McClutchie v Shane Parore t/a The Thirsty Dog Bar & Cafe |
| Summary | UNJUSTIFIED DISMISSAL – No appearance for respondent – Whether 90 day trial period in s67A Employment Relations Act 2000 (“ERA”) applicable - Applicant signed written employment agreement (“EA”) five weeks after commencing employment – Three weeks after signing EA, applicant telephoned respondent to query work hours - Respondent advised had to let applicant go – Authority found EA provided for one month probationary period – Found nothing turned on wording of “trial period” in ERA compared with “probationary period” in EA - Found s67A(2)(a) ERA stated trial period to start at beginning of employee’s employment – Found applicant’s employment began five weeks prior to signing EA, and eight weeks prior to dismissal – Found outside one month’s trial period had concluded before dismissal – Found applicant not statute-barred from bringing personal grievance – Authority found no reason initially given for dismissal – Found respondent later wrongly relied on s67A ERA – Found no warning or opportunity for applicant to respond – Found respondent’s subsequent poor performance arguments breached EA, which required warnings to be in writing, with opportunity for improvement – Dismissal unjustified – REMEDIES – No contributory conduct – Authority found evidence of repeated unsuccessful efforts to find work compelling – Applicant began receiving sickness benefit four months after dismissal – Authority found four months reimbursement of lost wages appropriate – Found applicant suffered stress, particularly as had young children - Found $2,000 compensation appropriate - Day duty manager |
| Result | Application granted ; Reimbursement of lost wages ($5,148)(4 months) ; Compensation for humiliation etc ($2,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s63;ERA s67A;ERA s67A(2);ERA s128(3) |
| Cases Cited | Air New Zealand Ltd v V [2009] ERNZ 185 |
| Number of Pages | 9 |
| PDF File Link: | wa 6_10.pdf [pdf 25 KB] |