| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 19 |
| Hearing date | 19 Nov 2010 |
| Determination date | 17 January 2011 |
| Member | V Campbell |
| Representation | D Vinnicomb ; J Brosnan |
| Location | Auckland |
| Parties | Hebert v Avalon Industrial Services Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Less than three month’s employment – Parties had written fixed term employment agreement (“EA”) - Applicant’s employment subject to 90 day trial period - Respondent subcontracting to another company (“V”) – Respondent received phone call from V advising applicant to be removed from V’s work sites due to disruptive behaviour – Respondent concluded doctrine of frustration applied - Applicant called to meeting and informed employment frustrated as result of ban from V’s sites and respondent had no other work to offer – Authority found respondent’s reliance on frustration hasty and ill advised – Found as frustration terminates contract and discharges parties further liability under it not to be lightly invoked - Found EA made sufficient provision for circumstances parties faced – Found EA contained at least two provisions which enabled respondent to consider applicant’s performance or conduct and take steps to terminate employment – Found reliance on frustration meant was no procedural fairness in way applicant’s employment ended – Respondent did not establish what applicant’s disruptive behaviour was – Applicant not informed what meeting was for or possible outcome - Respondent’s actions not those of fair and reasonable employer - Dismissal unjustified – Remedies – No contributory conduct – Authority considered whether 90 day trial clause should be invoked – Found respondent did not rely on clause in ending employment and had not claimed applicant prohibited from bring personal grievance - Applicant found alternative employment week after dismissal – Applicant claimed paid at lower rate and sought lost wages from date of dismissal until end of fixed term contract based on actual loss – Applicant failed to provide evidence of difference in pay – In those circumstances Authority found appropriate to award one weeks wages lost following dismissal plus one weeks wages in lieu of notice – Respondent to pay $2,304 reimbursement of lost wages - Applicant provided little evidence of hurt and humiliation suffered as result of dismissal – Authority accepted applicant would have suffered some distress because of manner of dismissal – Found lack of evidence meant award at lower end of scale appropriate - $2,000 compensation awarded - Rope Access Walker |
| Result | Application granted ; Reimbursement of lost wages ($2,304) ; Compensation for humiliation etc ($2,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124 |
| Cases Cited | A Worker v A Farmer [2010] ERNZ 407;J Lauritzen AS v Wijsmuller BV (The Super Servant Two") [1990] 1 Lloyd's Rep 1;Karelrybflot v Udovenko & Ors [2000] 2 NZLR 24;Turner v Goldsmith [1891] 1 QB 544" |
| Number of Pages | 7 |
| PDF File Link: | 2011_NZERA_Auckland_19.pdf [pdf 23 KB] |