| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 165 |
| Hearing date | 24 Aug 2011 - 25 Oct 2011 (2 days) |
| Determination date | 28 October 2011 |
| Member | M B Loftus |
| Representation | R Hancock ; M Lindstrom |
| Location | Christchurch |
| Parties | Penny v Direct Freight Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed dismissal justified by existence of 90 day trial period, applicant’s poor performance and applicant’s inability to continue to perform tasks due to pregnancy and not having required licence – Applicant initially engaged as causal employee but as result of vacancy was offered full time employment – Parties disputed whether applicant received written employment agreement – Respondent claimed applicant given verbal warning for three incidents – Applicant accepted incidents occurred but claimed unaware of any possible warnings that may have resulted – Applicant failed to renew dangerous goods licence before it expired – Parties disputed whether applicant had told colleagues had no intention of renewing licence – Respondent accepted did not approach applicant about renewing license but claimed renewal was employee responsibility – Applicant claimed told by respondent supervisor (“P”) to depart later than normal on ferry – P claimed told applicant to go home as sailings were being disrupted by poor weather but to be ready for normal start – Respondent claimed lost $1,851 revenue as result of applicant’s late departure – Respondent director (“L”) advised applicant that applicant’s pregnancy incompatible with respondent’s requirements – Respondent’s only client advised respondent that applicant no longer approved driver due to continued service failures – L claimed told applicant could not return to job as not approved driver – Applicant dismissed – Authority found employment agreement never properly executed as not signed by applicant – Found applicant not new employee on day trial commenced – Found provision made no mention of fact employee precluded from bringing dismissal grievance – Found applicant not precluded from bringing grievance on basis of 90 day trial period – Found respondent should have forestalled problems around applicant’s renewal – Found dismissal excessive penalty for applicant’s failure to renew licence – Found respondent’s concerns about applicant’s pregnancy should not have been consideration for dismissal as unlawful to dismiss employee by reason of pregnancy – Found respondent never put allegation that applicant told colleagues had no intention of renewing licence to applicant – Found warnings did not justify dismissal as never put to applicant during dismissal process – Dismissal unjustified – REMEDIES – No contributory conduct – Found applicant’s failure to renew licence and poor performance were not issues foremost in respondent’s mind – Found warnings did not warrant finding of contribution as respondent did not discuss warnings with applicant during dismissal process – $10,240 reimbursement of lost wages appropriate – Found respondent had to make arrangements with Inland Revenue to ensure lost wages paid to applicant as net amount – $4,000 compensation appropriate – Line Haul Driver |
| Result | Application granted ; Reimbursement of lost wages ($10,240 net) ; Compensation for humiliation etc ($4,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s67A;ERA s103A;Interpretation Act 1999 s4;Interpretation Act 1999 s7;Parental Leave and Employment Protection Act 1987 s49(1)(a) |
| Cases Cited | Air New Zealand Ltd v V [2009] ERNZ 185;Smith v Stokes Valley Pharmacy (2009) Ltd [2010] ERNZ 253 |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Christchurch_165.pdf [pdf 64 KB] |