| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 415/10 |
| Hearing date | 21 Jul 2010 |
| Determination date | 16 September 2010 |
| Member | V Campbell |
| Representation | M Nutsford ; L Campbell |
| Location | Auckland |
| Parties | Dawson v Top Freight Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant asked for sick leave following hospitalisation for pneumonia – Applicant claimed dismissed – Respondent claimed dismissal misunderstanding – Applicant’s evidence preferred – Found if truly misunderstanding respondent could have sorted matter out – Respondent wrote to applicant’s representative informing of decision not to continue applicant’s employment beyond trial period – Found employment agreement (“EA”) unsigned therefore trial period had no effect – Found applicant concerned about inconsistencies between letter of appointment and EA and did not sign EA – Found applicant did not agree to trial period – Dismissal unjustified – REMEDIES – No contributory conduct – Found employment relationship problem may have been resolved much earlier if respondent took time to speak with applicant following recuperation period – $8,775 reimbursement of lost wages appropriate – Applicant claimed suffered financial hardship and humiliated by claims was unreliable – $7,000 compensation appropriate – COUNTERCLAIM – BREACH OF CONTRACT – Respondent claimed applicant engaged in misleading and deceptive conduct because unreliable due to taking sick leave – Found applicant confirmed at interview reliable and statement not misleading nor deceptive – Respondent claimed applicant repudiated contract when advised respondent required two weeks leave to recuperate from pneumonia – Found no repudiatory conduct – Respondent also claimed able to cancel EA as induced to enter agreement by misrepresentation – Found no misrepresentation as to reliability – Respondent claimed applicant broke fundamental term of EA by failing to attend work as and when required – Found applicant not expected to work while sick – Respondent claimed applicant not punctual to work and therefore in breach of EA – Found EA not signed by either party and no breach – Counterclaim dismissed – Office assistant |
| Result | Application granted ; Application dismissed (counterclaim) ; Reimbursement of lost wages ($8,775) ; Compensation for humiliation etc ($7,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s67;ERA s103A;ERA s124;ERA s162(c);ERA s162(d);Contractual Remedies Act 1979 s7(2);Contractual Remedies Act 1979 s7(3);Fair Trading Act 1986 s9;Fair Trading Act 1986 s12 |
| Cases Cited | Air New Zealand v Hudson [2006] ERNZ 415;Toll New Zealand Consolidated Ltd v Rowe unreported, Shaw J, 19 Dec 2007, AC 39A/07;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 9 |
| PDF File Link: | aa 415_10.pdf [pdf 41 KB] |