| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 160/10 |
| Hearing date | 13 May 2010 |
| Determination date | 12 August 2010 |
| Member | H Doyle |
| Representation | GA Amey (in person) ; S Fairclough |
| Location | Nelson |
| Parties | Amey v Absolute Insurance Ltd |
| Summary | PRACTICE AND PROCEDURE – Whether applicant permanent or causal employee – Applicant claimed permanent employee – Respondent argued applicant wanted to remain a causal employee at all material times – Employment agreement (“EA”) provided respondent had no obligation to provide applicant further work – Provided no express or implied expectation of permanent employment – Applicant worked regular hours on roster – Respondent offered permanent EA however applicant wanted to remain on current EA – Applicant subsequently dismissed - Authority found key issue whether mutual employment-related obligations continued between periods of work to show ongoing employment relationship – Found rosters and way parties describe nature of employment relationship relevant – Found EA provided no ongoing obligation for respondent to offer and for applicant to accept work – Found applicant worked according to regular roster made in advance – Found applicant’s work pattern became predictable during course of time to give rise to expectation would be provided work – Found respondent, at that point, had corresponding obligation to provide work – Found applicant permanent employee at time of dismissal - RAISING PERSONAL GRIEVANCE - UNJUSTIFIED DISMISSAL – Applicant claimed grievance raised within time – Claimed unjustifiably dismissed – Respondent argued grievance not raised within time – Argued dismissal justified – Respondent’s director (“Y”) alleged applicant threaten to delete data from computer when requested to leave computer on - Altercation occurred – Meeting held at applicant’s request – Applicant raised issue did not want to attend training as did not want to disclose “knowledge” about products which applicant was required to sell – Applicant claimed such “knowledge” personally belonged to applicant despite being acquired through course of employment – Y raised concern about altercation – Parties acknowledge should have behaved professionally – Respondent subsequently held meeting and decided no further work to be provided to applicant – Respondent made decision on basis believed applicant bullying managers – Concern not disclosed to applicant – Following day, applicant advised no further work available and required to leave workplace – Twenty days later, applicant wrote to respondent’s manager (“H”) raising claim respondent not acted in good faith, dismissal unjustified therefore had personal grievance - Authority found applicant’s letter sufficiently specified alleged grievances – Found grievance raised within time – Found respondent’s advice no further work constituted dismissal – Found dismissal procedurally unjustified as applicant not aware altercation would be basis for disciplinary action – Found applicant not given specific allegation to answer as real reason for dismissal was belief applicant bullying managers but told termination on basis of no work available – Found if respondent had followed fair procedure, would not have concluded dismissal appropriate – Dismissal unjustified - REMEDIES – Found 40 percent contributory conduct as applicant’s behaviour towards respondent not that expected of reasonable employee – Reimbursement of $2,600 lost wages - $5,000 compensation appropriate - PENALTY – Good faith - Applicant sought penalty for alleged breach of good faith during discussion over offered EA – Authority found applicant advised to obtain legal advice and not pressured to accept EA – Found no breach of good faith to warrant penalty – Penalty declined – COSTS – No order for costs as applicant self-represented - Telemarketer |
| Result | Application granted (Unjustified dismissal) ; Application dismissed (Penalty) ; Reimbursement of lost wages ($2,600 reduced to $1,560) ; Compensation for humiliation etc ($5,000 reduced to $3,000) ; No order for costs ; Disbursements in favour of applicant ($70)(Filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s114 |
| Cases Cited | Creedy v Commissioner of Police [2006] ERNZ 517;Jinkinson v Oceania Gold (NZ) Ltd [2009] ERNZ 225 |
| Number of Pages | 13 |
| PDF File Link: | ca 160_10.pdf [pdf 51 KB] |