| Summary |
UNJUSTIFIED DISMISSAL - Poor performance - Applicant claimed summarily dismissed without being given reason - Respondent claimed justifiably terminated applicant’s casual employment following seven days’ absence without leave, applicant’s mucking around, and ongoing failure to do share of overtime - Employment agreement (“EA”) provided for termination for cause with one days’ notice - Cause included, but not limited to, poor performance and general misconduct - EA provided at least one warning would be given before termination - Applicant had poor attendance, poor work ethic, and failed to do share of substantial overtime - Respondent made it clear to applicant behaviour unacceptable but never carried out formal disciplinary process or gave formal warning - Authority found respondent’s belief entitled to dismiss applicant without notice, investigation, or discussion as on casual employment contract incorrect proposition of law - Found applicant entitled to normal protections of employees as to fair and reasonable treatment - Found respondent failed to adhere to EA as did not give applicant any warnings before termination and did not pay one day’s pay in lieu of notice - Found fair and reasonable treatment would involve giving of warning, following proper investigation, and subsequent opportunity for improvement - Found no way of knowing if applicant would have improved performance if given formal warning - Found respondent’s actions not those of fair and reasonable employer - Dismissal unjustified - Remedies - Found applicant did not contribute to respondent’s failure to adhere to EA - However, applicant’s poor work attendance and output were blameworthy actions significantly contributing to situation giving rise to grievance - 50 percent contributory conduct - Found applicant failed to sufficiently mitigate loss - Found applicant did not pursue work hard enough, did not register with WINZ and turned down offers of temporary work - Found reimbursement for lost remuneration to be limited to four weeks - Authority declined to make order for loss of expected overtime as applicant regularly failed to work overtime - Authority accepted applicant upset by manner employment terminated, however, evidence of hurt and humiliation light and not corroborated by other witnesses - Also length of employment short and had no guarantee of ongoing work - $4,000 compensation, reduced to $2,000 for contribution, appropriate - Cool store worker |