| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 147 |
| Hearing date | 25 Aug 2011 |
| Determination date | 23 September 2011 |
| Member | R A Monaghan |
| Representation | J Tannahill ; D Parbhu |
| Location | Wellington |
| Parties | Dunlop v CPC New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed unjustifiably dismissed by respondent - Respondent’s general manager (“P”) offered applicant salary increase and other financial incentives if applicant met increased sales targets - P asked applicant to communicate with P daily and provide details of number and quality of calls P made – Applicant supplied call sheets to respondent on fortnightly basis not daily as required - Applicant failed to communicate with P as requested and did not meet sales targets – Applicant failed to respond to P’s second request to communicate daily and provide call sheets – P warned applicant month later if failure to improve performance and provide call sheets continued P would make applicant redundant or reduce salary – Applicant claimed performance affected as was waiting for daily figures and respondent had failed to pay bonus or reimburse expenses, replace phone or maintain stock figures – P told applicant due to poor performance applicant could resign, take redundancy or improve performance – After applicant failed to reply P sent text message to applicant advising applicant’s position redundant – Applicant treated redundancy as effective immediately and sought one month’s pay in lieu of notice and holiday pay – Authority found respondent had no justification for terminating applicant’s employment in manner respondent did and managed matter poorly – Dismissal unjustified – REMEDIES – Significant contributory conduct - Found respondent would probably have terminated applicant’s employment due to economic reasons despite deficiencies in respondent’s approach – Found respondent had genuine and justified concerns about applicant’s performance – Applicant obtained alternative employment almost immediately – Authority not satisfied applicant lost remuneration or, alternatively, found applicant’s conduct would have significantly reduced lost remuneration award – Found no injury to applicant’s feelings and compensation not appropriate - ARREARS OF WAGES AND HOLIDAY PAY – Employment agreement (“EA”) provided for four weeks’ notice but applicant only received one week’s pay – Applicant sought balance - Respondent claimed unable to calculate wages and holiday pay correctly as applicant did not provide required records and in any event withheld payment as applicant provided respondent’s confidential information to new employer - Applicant claimed respondent owed $3,658 holiday pay on basis applicant worked 40 hour week – Respondent claimed did not make payment as applicant had also been working at radio station one day each week and applicant failed to record hours worked – Applicant acknowledged worked at radio station but claimed had respondent’s consent and made up time by working after hours or weekends – Found applicant on salary, worked flexible hours and working elsewhere not itself breach of EA – Found allegations relating to confidential information and working elsewhere did not give respondent right to refuse holiday pay - Found outstanding wages and holiday pay due and owing – Interest payable - PENALTY – Applicant sought penalty for respondent’s failure to provide written EA - Respondent provided applicant with EA year after employment commenced - Respondent claimed written EA in place – Respondent sought applicant’s signature and return of EA but applicant left EA in company car and found after applicant’s employment ended – Found applicant’s claim without merit – No penalty – Applicant sought penalty for respondent’s failure to pay wages and holiday pay – Found no reference to failure to pay in context of breach for which penalty available – No penalty - Salesperson |
| Result | Applications granted (unjustified dismissal, arrears of wages and holiday pay) ; Arrears of wages ($2,307.69) ; Arrears of holiday pay ($3,658.81) ; Interest (5%) ; Applications dismissed (penalties) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s133;ERA s135(5);Holiday Act 2003 s27;Holiday Act 2003 s75;Holiday Act 2003 s76 |
| Number of Pages | 8 |
| PDF File Link: | 2011_NZERA_Wellington_147.pdf [pdf 23 KB] |