| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 294/10 |
| Hearing date | 7 May 2010 |
| Determination date | 23 June 2010 |
| Member | J Crichton |
| Representation | M Whitehead ; K Hughes |
| Location | Auckland |
| Parties | Newbold v Interlink Foods Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Applicant claimed dismissal unjustified - Respondent claimed employment ended in reliance on trial period provisions in s67A and s67B Employment Relations Act 2008 (“ERA”) - Parties disputed extent of negotiations around terms of employment agreement (“EA”) - Applicant claimed continuously employed - Respondent claimed applicant knew about trial period - Found applicant had opportunity to seek advice but chose not to - Found EA contained provisions about trial period so that nature and extent of employment being offered clear - Parties disputed whether applicant’s employment terminated at meeting or four days later when told to hand over respondent’s property - Applicant would have been dismissed after trial period ended if not dismissed at meeting - Found applicant dismissed at meeting - Found applicant dismissed within trial period - Applicant claimed as provision in EA referred to three month trial period was inconsistent with requirements of ss67A and B ERA for 90 day or less trial period - Found respondent intended provision to comply with s67A and B ERA as amended standard EA to include reference to it - Found while provision inelegantly drafted and should have referred to 90 days not three months intention clear - Found s67A(2) ERA defined trial provision as written provision that stated or was to effect that for specified period employee to serve trial period - Found as subsection disjunctive as long as provision in EA was to that effect s67A(2) ERA complied with - Found maximum extent of non compliance would be one day over three month period - Found respondent amended EA to take advantage of new statutory enactment - Found respondent only employed applicant because could rely on trial period - Found applicant knew offered terms and agreed to it - Found provision was to effect that for specified period applicant to serve trial period - Trial period in compliance with ss67A and B ERA - Dismissal justified - UNJUSTIFIED DISADVANTAGE - Applicant claimed respondent employed replacement after dismissal - Authority accepted respondent’s evidence employee recruited as consequence of long term strategy that had genesis before applicant employed - Found employee not employed in same capacity as applicant - Found given dismissal justified difficult to see how applicant disadvantaged by respondent subsequently employing someone else - No unjustified disadvantage - Sales Manager |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s67;ERA s67A;ERA s67B;ERA s103A;Employment Relations Amendment Act 2008 |
| Number of Pages | 7 |
| PDF File Link: | aa 294_10.pdf [pdf 27 KB] |