| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 411/10 |
| Hearing date | 9 Jun 2010 |
| Determination date | 13 September 2010 |
| Member | V Campbell |
| Representation | M Tawhara ; no appearance |
| Location | Auckland |
| Parties | Scicluna v Le Grand Hotel Ltd (In liquidation) |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - No appearance for respondent - Respondent experiencing financial difficulties - However, during applicant’s employment respondent’s level of debt and revenue increasing - Applicant had meeting with co-worker (“S”), respondent’s director (“B”) and financial advisor to discuss hotel’s performance - Parties agreed draft budget would be prepared and consultation with department heads would take place - During meeting B informed applicant trial period was up and wanted applicant’s employment terminated for poor performance - Applicant issued with verbal warning - Applicant claimed given no notice meeting was to discuss performance related issues or was disciplinary in nature - Five days later meeting held where applicant and S presented proposed budget and plan - B told applicant would discuss information with respondent’s financial advisor - Later that day B informed applicant and S both summarily dismissed - Post dismissal respondent wrote to applicant advising had been dismissed because abandoned employment when walked out on day summarily dismissed - Authority found warning caused disadvantage as applicant’s employment placed in jeopardy with no indication as to why - Found issuing of warning unjustified as not action of fair and reasonable employer in all circumstances - Found unjustified disadvantage - Found no dispute applicant dismissed - Found as employment agreement containing trial period not signed not enforceable - Applicant claimed dismissal unexpected - Found while applicant may not have expected dismissal that day was aware respondent considering dismissal - Found no procedural fairness - Found respondent’s actions not those of fair and reasonable employer - Dismissal unjustified - Remedies - No contributory conduct - Applicant provided evidence of extensive efforts to mitigate loss - Applicant currently unemployed and in receipt of unemployment benefit - Three months reimbursement of lost wages awarded - Applicant gave compelling evidence of humiliation experienced - $5,000 compensation for unjustified disadvantage and dismissal awarded - COSTS - Successful personal grievance - Less than half a day investigation meeting - Applicant sought contribution to total costs of $3,000 - Found applicant’s costs reasonable - Having regard to length of investigation meeting and in principled exercise of discretion respondent to pay applicant $1,000 contribution to costs - Operations Manager |
| Result | Application granted ; Reimbursement of lost wages ($12,089.99) ; Compensation for humiliation etc ($5,000) ; Costs in favour of applicant ($1,000) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA Second Schedule cl12 |
| Cases Cited | Air New Zealand Ltd v Hudson [2006] ERNZ 415;Bilkey v Imagepac Partners unreported, Colgan J, 7 Oct 2002, AC 65/02;Mason v Health Waikato Ltd (in respect of the former Waikato Area Health Board) [1998] 1 ERNZ 84;McCosh v National Bank of New Zealand Ltd unreported, Colgan J, 13 Sep 2004, AC 49/04;NZ Storeworkers etc IUOW v South Pacific Tyres (NZ) Ltd [1990] 3 NZILR 452;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] 1 ERNZ 808;Toll New Zealand Consolidated Ltd v Rowe [2007] ERNZ 840;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 8 |
| PDF File Link: | aa 411_10.pdf [pdf 30 KB] |