| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 101 |
| Hearing date | 3 May 2011 - 4 May 2011 (2 days) |
| Determination date | 13 June 2011 |
| Member | G J Wood |
| Representation | J A Burney ; J Douglas |
| Location | Wanganui |
| Parties | Johnston v Adecco Personnel Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed when given final warning - Applicant recruited employees for respondent’s clients - Respondent’s branch where applicant worked did not follow correct recruitment processes – New branch manager (“X”) discovered branch where applicant worked not following correct processes and put process in place – Authority found applicant aware minimum standards had to be complied with at least from time X took over – Applicant’s high sales output decreased due to personal issues – Respondent’s management discovered compliance concerns and undertook review – Management found applicant had not completed drug testing, criminal conviction checks or managed health and safety concerns before recruiting employees for applicant’s clients – Disciplinary meeting held – Respondent’s director claimed applicant’s actions could mean respondent lost applicant’s client and another large international client – Authority noted details of respondent’s allegations not provided before meeting and applicant unable to give detailed response – Applicant claimed did not have time to meet requirements and had not been trained correctly – Applicant accepted made errors but denied raising personal issues with clients unless asked about them – Respondent sent applicant letter after meeting stating did not want to hear applicant’s comments about validity of client’s concerns and to get over any personal issues – Two week delay in holding another meeting with applicant – Applicant issued with final warning next day noting applicant would be give strict retraining programme, would lose big client and not to talk about personal issues with clients – Applicant told warning in place for twelve months and further misconduct may lead to dismissal – Authority found applicant attempted to comply with directions but found very difficult – Respondent informed of further complaint from another employee working for client applicant discussed personal matters and publicly criticised respondent and co-worker – Further disciplinary meeting held, applicant provided with partial copy of complaint before meeting – Respondent found difficult to chair meeting as applicant’s representative insisted respondent first conduct full investigation into applicant’s branch and did not respond to allegations – Authority noted representative’s conduct could explain why applicant not given copy of email containing additional comments made by complainant and copy of written complaint – Applicant accepted had discussed personal matters but had not initiated discussion or discussed expansively and had never criticised respondent - Applicant dismissed – Authority noted failure to comply with recruitment processes identified as serious misconduct in employment agreement – Found although details of complaint not provided before first meeting, applicant had opportunity to provide response before decision made – Found was serious misconduct warranting dismissal – No unjustified disadvantage - Authority found respondent not required to conduct full investigation into respondent’s branch before disciplining applicant – Noted respondent should have given applicant copy of email containing additional comments made by complainant and copy of written complaint – Found however failures did not result in harm or unfairness to applicant – Found respondent could reasonably infer applicant spoke negatively about co-worker and respondent – Found although complainant not client, complainant sufficiently related to client that applicant’s comments breached warning – Dismissal justified - Sales Consultant |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Wellington_101.pdf [pdf 41 KB] |