| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 495/10 |
| Hearing date | 22 Jul 2010 - 15 Oct 2010 (2 days) |
| Determination date | 29 November 2010 |
| Member | A Dumbleton |
| Representation | M Nutsford ; L Yu |
| Location | Auckland |
| Parties | Yu v Golden World (NZ) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – PENALTY – No written employment agreement (“EA”) – Authority found no dispute applicant dismissed from respondent – Found only reason provided to applicant that “not right fit” and “not suitable” for position – Respondent’s sole director (“Y”) argued when returned from overseas trip found business not run properly by general manager (“H”) – Subsequently H dismissed – Y argued H responsible for applicant while Y overseas – Found H in a position to directly observe conduct and performance of applicant while Y away – H summonsed by Authority to give evidence – Y argued applicant and H conspired to give false evidence to exact revenge on respondent – Authority rejected Y’s argument as H had not wanted to be involved in matter – Authority assessed H as honest and credible – H’s evidence preferred where conflicted with Y – Found respondent did not give applicant copy of proposed EA – Found no oral or written agreement as to trial period – Respondent argued 90 day statutory trial period applied – Authority found if trial period had been intended, respondent had not complied with requirements to create it – Found penalty appropriate – Found applicant did not receive disciplinary warning of any kind at any time from respondent – Applicant provided formal dismissal letter – Subsequently applicant returned to respondent’s premises and asked to keep job – Y told applicant why not suitable and asked to leave building – Applicant rang Police when became upset about having employment terminated in front of other staff – Respondent argued applicant driving forklift without licence amounted to serious misconduct justifying dismissal – Authority found respondent through H fully aware applicant did not have forklift licence when commenced employment – Found respondent did not make disciplinary issue of licence matter, but intended to see applicant become properly licensed – H denied making complaints of applicant as alleged by Y – H’s evidence preferred – Found respondent did not have reasonable basis for believing applicant’s actions amounted to serious misconduct or poor performance and belief not relied on to justify dismissal – Found while likely Y did have some reason for dismissing applicant, Y had not explained what reason truly was – Found respondent’s actions not those of fair and reasonable employer – Dismissal unjustified – REMEDIES – No contributory conduct – Found arrears of holiday pay owing to applicant – Found applicant made reasonable efforts to mitigate loss – Found 13 weeks reimbursement of lost wages owing – Found Y observed applicant to be sensitive person – Found $4,500 compensation appropriate |
| Result | Application granted ; Reimbursement of lost wages (13 weeks) ; Arrears of holiday pay (Quantum to be determined) ; Compensation for humiliation etc ($4,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s63A;ERA s63A(2)(a);ERA s67A;ERA s67B;ERA s103A |
| Number of Pages | 13 |
| PDF File Link: | aa 495_10.pdf [pdf 42 KB] |