| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 158 |
| Hearing date | 18 Aug 2011 |
| Determination date | 14 October 2011 |
| Member | G J Wood |
| Representation | no appearance ; R Narayan |
| Location | Napier |
| Parties | Pearse v Home Ventilation Hawkes Bay Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – No appearance for applicant – Respondent claimed applicant subject to 90 day trial period – Authority found applicant counselled about poor performance – Found applicant had problems meeting dress code – Found on two occasions applicant walked out of work during course of working day without authorisation – Found co-workers complained about applicant’s disruptive behaviour at work – Found co-workers noticed alcohol on applicant’s breath and glass applicant was drinking from contained alcohol – Applicant did not respond to concerns – Found acceptable inference for fair and reasonable employer to draw that applicant did not respond because guilty of drinking at work – Applicant dismissed – Found trial period clause effective – Found clause agreed upon in writing and employment agreement (“EA”) signed by both parties before or at commencement of employment relationship – Applicant received payment in lieu of notice consistent with EA – Found no unjustifiable dismissal claim could be brought – However found dismissal justified on facts – UNJUSTIFIED DISADVANTAGE – Applicant claimed disadvantaged because unable to make bonus for week because dismissed and received payment in lieu of notice – Found applicant given full induction and ongoing training and support in role but performance never satisfactory – Found applicant never made any targets on regular basis – No disadvantage – Found all claims dismissed – COSTS – Length of investigation meeting not specified – Respondent sought $2,000 contribution to costs plus travel expenses – Found costs reasonable – Found no information provided that would suggest applicant unable to afford to pay sum - $2,000 contribution to costs appropriate – Direct Marketer |
| Result | Applications dismissed ; Costs in favour of respondent ($2,000) ; Disbursements in favour of respondent ($542.35)(Travel expenses) |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s67A;ERA s67B;ERA s120;ERA Second Schedule cl12 |
| Cases Cited | Land Transport New Zealand v MacKay unreported, Couch J, 9 Aug 2006, WC 14/06;Smith v Stokes Valley Pharmacy (2009) Ltd [2010] ERNZ 253 |
| Number of Pages | 8 |
| PDF File Link: | 2011_NZERA_Wellington_158.pdf [pdf 40 KB] |