| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 234/10 |
| Hearing date | 12 Dec 2010 |
| Determination date | 17 December 2010 |
| Member | P Cheyne |
| Representation | D Beck ; F Reade |
| Location | Christchurch |
| Parties | Smith v Pacific Optics Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant claimed warnings received for poor performance caused unjustified disadvantage - Parties written employment agreement (“IEA”) set out process for formal procedures and investigations - Respondent sent letter to applicant setting out matters of concern that required immediate attention otherwise further action would be taken – Month later respondent wrote to applicant stating was receiving warning for further performance issues – Nearly two months later respondent again wrote to applicant stating was final warning for poor performance – Authority found first letter not expressly formal warning in accordance with IEA – Found two letters expressed to be warnings obviously intended as formal disciplinary action – Found respondent did not comply with process in IEA – Found respondent simply decided to issue warnings and advised applicant in writing – Found respondent’s actions not those of fair and reasonable employer - Found warnings made applicant’s employment less secure so applicant disadvantaged in employment – Unjustified disadvantage – UNJUSTIFIED DISMISSAL – Poor Performance – Respondent sent applicant letter listing six allegations of poor performance and requesting applicant attend phone conference – Applicant advised of right to support person and that employment in jeopardy – Applicant declined to attend pone conference but provided written response – Applicant advised was dismissed – Applicant claimed dismissal unjustified - Found fair and reasonable employer would not have considered first letter as warning and two further letters expressed to be warnings feel short of being valid warnings – Found therefore respondent dismissed applicant for poor performance having not properly warned him – Found respondent’s actions not those of fair and reasonable employer - Dismissal unjustified - REMEDIES - Authority found was contributory conduct - Found was substantial merit in respondent’s criticisms about applicant’s standard of work – Found likely applicant would have been justifiably dismissed had respondent followed proper procedure - Found, therefore, award for reimbursement of lost wages not appropriate – Found compensation award for unjustified dismissal not appropriate – However, found compensation award for unjustified disadvantage appropriate – Found applicant surprised and disappointed sent warning letters without opportunity to explain or mitigate - $2,500 compensation appropriate - PENALTY – Applicant sought penalty for breaches of good faith – Claimed respondent breached duty to be active and constructive in maintaining productive employment relationship by issuing warnings without engaging in formal disciplinary meetings – Claimed failure deliberate, serious and sustained or intended to undermine employment relationship - Found respondent had breached duty of good faith – However, Authority did not accept breaches deliberate, serious, and sustained – Also no evidence to establish respondent breached good faith with intention to undermine employment relationship – Application for penalty declined - Sales Executive |
| Result | Applications granted (Unjustified disadvantage)(Unjustified dismissal) ; Compensation for humiliation etc ($2,500) ; Application dismissed (Penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(b);ERA s4A(a);ERA s4A(b)(iii);ERA s124 |
| Cases Cited | Air New Zealand Ltd v Hudson [2006] ERNZ 415 |
| Number of Pages | 11 |
| PDF File Link: | ca 234_10.pdf [pdf 39 KB] |