| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 464/10 |
| Hearing date | 10 Sep 2010 |
| Determination date | 29 October 2010 |
| Member | E Robinson |
| Representation | S Austin ; J Humphrey |
| Location | Whakatane |
| Parties | Dunnings v Serious Fun N" Mind Trust" |
| Summary | UNJUSTIFIED DISMISSAL – UNJUSTIFIED DISADVANTAGE – Applicant claimed written warning unjustified – Respondent received complaint about applicant but not raised with applicant – Applicant went on annual leave and new procedures implemented during absence – Applicant attended meeting and given verbal warning for inability to follow instructions – Applicant not given prior notice of meeting, not advised meeting would be disciplinary, or given right to representation – Applicant went on sick leave – Applicant given written warning for repeated failure to follow reasonable instruction – Applicant went on sick leave – Applicant dismissed for failing to provide notification of absence – Applicant provided medical certificates but unable to send replacement certificate for several days – Parties agreed to mediate – Authority found applicant on sick leave and no opportunity for applicant to fail to follow instructions – Written warning unjustified – Unjustified disadvantage – Applicant summarily dismissed – Found no prior discussion about issues prior to dismissal – Found no justification in raising historical issues – Respondent concerned applicant might have intended to remove monies from Trust Account – Found fair and reasonable employer would have carried out full investigation – Found had respondent carried out investigation into matter would have been open to conclude applicant behaving diligently in role – Found applicant not given opportunity to refute allegation or provide explanation – Found respondent departed so far from basic requirements of procedural fairness to render dismissal unjustified – REMEDIES – Found respondent did not comply with basic tenets of natural justice or good faith obligations – Applicant sought reinstatement – Found reinstatement practicable – Applicant to be reinstated to former position – Parties to discuss and achieve clarification of performance standards and operational administrative matters – Parties to resolve reimbursement of lost wages – Found applicant suffered significant distress resulting in being medically unfit for work - $3,000 compensation for disadvantage appropriate – Found respondent unjustifiably tarnished applicant’s reputation - $10,000 compensation for dismissal appropriate – Administration Manager |
| Result | Applications granted ; Reinstatement ordered ; Compensation for humiliation etc ($3,000)(unjustified disadvantage) ($10,000)(unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103(1)(b);ERA s125 |
| Cases Cited | Ioane v Waitakere City Council [2003] ERNZ 104;NZ (with exceptions) Food Processing etc IUOW v Unilever New Zealand Ltd [1990] 1 NZILR 35 |
| Number of Pages | 14 |
| PDF File Link: | aa 464_10.pdf [pdf 38 KB] |