| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 49/10 |
| Hearing date | 18 Sep 2009 - 20 Oct 2009 ( 2 days) |
| Determination date | 05 March 2010 |
| Member | H Doyle |
| Representation | D Pine ; K Ashcroft |
| Location | Christchurch |
| Parties | Ellis v Oaks Hotels & Resorts NZ Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed dismissal for poor performance unjustified – Respondent claimed dismissal justified – Initial part of applicant’s employment relatively incident free – Applicant’s manager (“K”) spoke to applicant about concerns about her performance – About month later applicant spoken to again – Applicant not informed was disciplinary meeting, disciplinary action could follow, or that could have representative – Applicant advised would be given warning related to poor performance – K did not meet with applicant on date specified in warning – About four months later K met with applicant – K and applicant had informal discussion and report prepared – Dispute between parties as to whether applicant informed dismissal a possibility – Later that moth K and manager from Australia inspected property – Inspection raised concerns – Meeting held – Dispute whether parties agreed specific time to meet following day – Respondent’s evidence preferred – Found applicant deliberately took time arriving at work following day – When K located applicant asked to continue discussion from previous evening - Applicant asked if was disciplinary meeting and told was – Applicant asked for support person but unable to obtain representation - Applicant dismissed - Authority satisfied respondent dissatisfied with applicant’s performance – Found review of performance not actions of fair and reasonable employer – Found fair and reasonable employer would have followed on from warning with specific performance targets – Found applicant not properly informed position at risk – Found no advance notice of disciplinary meeting given – Found in absence of fair process dismissal decision not justifiable - Dismissal unjustified – Remedies – Authority did not find strong causal connection between applicant’s performance and respondent’s failure to manage performance – However, found blameworthy conduct on applicant’s part on day of dismissal that was sufficiently proximate to circumstances giving rise to personal grievance – Found 20 percent contributory conduct - Authority satisfied applicant made attempt to mitigate loss – Found would not have awarded applicant more than three months lost wages – Found in circumstances six weeks lost wages, subject to contribution, appropriate – Applicant claimed placed under stress as result of dismissal – Authority accepted dismissal happened in unexpected and more dramatic way than employment relationships usually ended for poor performance - Compensation of $5,000, subject to contribution, appropriate - Hotel manager |
| Result | Application granted ; Reimbursement of lost wages ($7,500 reduced to $6,000) ; Compensation for humiliation etc ($5,000 reduced to $4000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659 |
| Number of Pages | 15 |
| PDF File Link: | ca 49_10.pdf [pdf 47 KB] |