| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 22 |
| Hearing date | 11 Nov 2010 |
| Determination date | 11 February 2011 |
| Member | P R Stapp |
| Representation | M Andrews ; V Eades, S Brennan |
| Location | Whanganui |
| Parties | Parkes v Squires Manufacturing Ltd & Anor |
| Other Parties | Squires |
| Summary | UNJUSTIFIED DISMISSAL – Poor performance – Applicant dismissed two days into employment after respondent became concerned about her performance – First respondent relied on 90 day trial period in employment agreement (“EA”) to dismiss – Authority found not all requirements of s67A Employment Relations Act 2000 (“ERA”) met – Found applicant signed EA at lunchtime on first day of employment – Found first respondent signed employment agreement about five days after applicant dismissed – Found parties had to sign EA at commencement of employment relationship for EA to be executed properly so trial period clause could apply – Authority found was unclear from evidence whether applicant received proper notice of termination of employment – Found terms of s67B not complied with – Found notice requirements set out in EA not complied with - Found as applicant started work without EA being properly executed followed applicant was existing employee, albeit for very short time before EA signed – Found therefore applicant not employee who had not been previously employed by employer as required by s67A ERA – First respondent claimed received verbal advice from Department of Labour (“DoL”) could apply trial period – Authority did not give any weight to what DoL said because nothing in writing about what was asked and what information given to provide opinion on, and no written advice of any opinion - No evidence from DoL called - Found as requirements for trial period not met respondents unable to rely on it – Found applicant able to bring unjustified dismissal claim - Found applicant given not opportunity to improve performance – Found dismissal decision made without consultation - Found decision to pay applicant pay in lieu of notice made without consultation - Found first respondent’s actions not those of fair and reasonable employer - Dismissal unjustified - Remedies – No contributory conduct - Applicant sought reimbursement of lost wages from date of dismissal until obtained alternative employment about five months later – Authority found due to performance concerns applicant’s employment may not have lasted that long – Reimbursement of lost wages limited to 13 weeks – Found applicant upset by abruptness of dismissal and how it was handled – $5,000 compensation appropriate – PENALTY – Applicant’s claim for penalty against second respondent for aiding and abetting breaches of EA dismissed - Machinist/sewer |
| Result | Application granted ; Reimbursement of lost wages ($6,500) ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s67;ERA s67A;ERA s67A(2);ERA s67(3);ERA s67B;ERA s103A |
| Cases Cited | Smith v Stokes Valley Pharmacy (2009) Ltd [2010] ERNZ 253 |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Wellington_22.pdf [pdf 28 KB] |