| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 166 |
| Hearing date | 18 Mar 2011 |
| Determination date | 26 April 2011 |
| Member | A Dumbleton |
| Representation | C Wilson ; C Bennett |
| Location | Auckland |
| Parties | Wilson v Promotional Systems Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Poor Performance - Applicant dismissed two days after end of 90 day trial period – Applicant claimed dismissal unjustified and underpaid wages and holiday pay – Respondent applicant lawfully dismissed and company had implemented trial period – Respondent claimed applicant reneged on mediated agreement – Authority found applicant informed of dismissal orally on 91st day and in writing on 92nd day – Found respondent incorrectly calculated when trial period ended – Authority noted employment agreement failed to note applicant not entitled to bring personal grievance if dismissed during trial period – Found fair and reasonable employer would not have made simple mistake in calculating trial period – Found fair and reasonable employer would not have acted as respondent did in all circumstances – Found respondent could not rely on trial provision whether dismissal within 90 day trial period or not and Authority could determine whether dismissal justified – Found applicant not given opportunity to provide advice, comment or explain performance – Found applicant not initially expected to meet sales targets – Found downturn in business and economy also contributed to applicant’s poor performance – Found in final days of trial period applicant not expressly told about termination possibility – Noted respondent should not have raised confidential mediation matters before Authority and applicant entitled to change mind before signing agreement - Found applicant did not contribute to respondent’s mistaken calculation of trial period – Authority noted applicant’s request for apology, reference and transforming dismissal to resignation outside Authority’s jurisdiction – Dismissal unjustified – REMEDIES – No contributory conduct - $7,788 reimbursement of lost wages appropriate – $7,500 compensation appropriate – Compensation for loss of company car appropriate – Interest payable - ARREARS OF WAGES AND HOLIDAY PAY – Applicant claimed unpaid wages and holiday pay – Found applicant paid two weeks notice of four week entitlement - Found unpaid wages and holiday pay due and owing – COUNTER CLAIM – Restraint of Trade – Good faith - Respondent claimed applicant breached fiduciary duty by attempting to negotiate with customer after termination – Authority found applicant had terminated employment agreement before applicant dealt with customer – No evidence that customer details were confidential information - Found respondent’s restraint of trade claim was anti-competitive and unenforceable – Respondent claimed applicant took respondent’s property and deleted all work from computer on day of dismissal – Found applicant had no chance to delete work records before leaving premises after dismissal – Business Development Executive |
| Result | Application granted ; Reimbursement of lost wages ($7,788.46) ; Compensation for humiliation etc ($7,500) ; Compensation for loss of company car ($540) ; Arrears of wages ($1,730.76) ; Arrears of holiday pay ($277) ; Interest (8.4%) ; No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA s67A;ERA s67A(2);ERA s67B;ERA s67B(2);ERA s103A;ERA s123;ERA s124;ERA s149;ERA Second Schedule cl11 |
| Cases Cited | Smith v Stokes Valley Pharmacy (2009) Ltd (2010) 7 NZELR 444;Trotter v Telecom Corporation of New Zealand Ltd [1993] ERNZ 659 |
| Number of Pages | 16 |
| PDF File Link: | 2011_NZERA_Auckland_166.pdf [pdf 52 KB] |