| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 191/10 |
| Hearing date | 9 Nov 2010 |
| Determination date | 23 November 2010 |
| Member | D Asher |
| Representation | R Jamieson ; D Burton, J Jermy |
| Location | Wellington |
| Parties | Briskie v Strawberry Homes Ltd |
| Summary | UNJUSTFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Poor performance – Applicant unjustifiably disadvantaged by warnings and unjustifiably dismissed – Applicant issued first written warning following complaint from client – Second warning issued regarding applicant’s non-responsiveness towards clients – Applicant required to attend disciplinary meeting to discuss “unacceptable behaviour” – Applicant subsequently dismissed – Respondent denied applicant unjustifiably disadvantaged or unjustifiably dismissed – Authority found applicant not fully forewarned as to purpose of disciplinary meeting – However, found procedural breaches did not result in applicant’s unjustifiably dismissed – Found open to respondent to dismiss applicant as unbroken thread of identical, ongoing performance issues previously raised with applicant – Found substantive basis of applicant’s dismissal because applicant failed to adhere to respondent’s processes and requirements regarding customer service – Found issues with applicant common to all disciplinary processes initiated by respondent during applicant’s less than one year employment – Found applicant’s performance shortcomings not new and applicant given fair and reasonable opportunity to address issues – No unjustified dismissal – RECOVERY OF MONIES – COUNTERCLAIM – BREACH OF CONTRACT – Respondent’s interpretation of when commission payments owing accepted – However, respondent conceded some commission payments owing – Found applicant’s failure to contest earlier warnings reliable evidence responsibility for respondent’s loss was with applicant – Found on balance of probabilities respondent had made out loss arose out of applicant’s non-performance – Found sum owing to respondent significantly greater than sum claimed by applicant as unpaid commission – Authority concluded considering particular difficulties in calculating damages involving third parties, satisfied, in term of overall justice, no merit in awarding commission earnings only to remove benefit of those monies by way of legitimate damages award in favour of respondent – Found matter best resolved by declining applicant’s claim for unpaid earnings as well as respondent’s special damages claim – ARREARS OF HOLIDAY PAY – Found any holiday pay owing to applicant would be recovered by way of respondent’s legitimate claim for special damages and therefore no benefit would arise from ordering payment to applicant – Parties applications refused – Orders accordingly |
| Result | Applications dismissed (Dismissal)(Disadvantage) ; Orders accordingly ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;Holidays Act 2003;Wages Protection Act 2003 |
| Cases Cited | Air New Zealand Ltd v V [2009] ERNZ 582;F v Attorney General [1994] 2 ERNZ 62;Masonry Design Solutions Ltd v Bettany unreported, Colgan CJ, 21 Aug 2009, AC 30/09 |
| Number of Pages | 10 |
| PDF File Link: | wa 191_10.pdf [pdf 29 KB] |