| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 179 |
| Hearing date | 30 Aug 2011 |
| Determination date | 14 November 2011 |
| Member | P R Stapp |
| Representation | A Connor ; J Evans |
| Location | Wellington |
| Parties | Hart v 32 Gems Dental Care Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent – Parties’ employment agreement (“EA”) included 90 day trial period – Applicant’s employment commenced one day earlier than stated in EA – Respondent’s director (“B”) claimed day after employment started discovered applicant had “needle strike” injury at previous employment and risk of cross contamination – Respondent told applicant employment withdrawn - Respondent claimed applicant could not bring personal grievance as EA included trial period – Respondent claimed applicant signed EA day before started work and parties agreed that employment would start one day earlier but EA would still apply – Applicant advised to read through EA before started – Applicant claimed queried trial period but B told respondent would still treat applicant fairly and consult before dismissal – B asked applicant to start day earlier as temporary assistant unavailable – Applicant forgot to bring in EA but told respondent happy with terms – Applicant claimed told B needed to get booster shot due to earlier injury – B claimed applicant had not told B about injury before and applicant would not give information about patient involved – B requested medical certificate – Applicant claimed told by B on second day of employment not to attend workplace as applicant did not have required immunisation – Found more likely than not respondent told applicant to stay at home – Found applicant unlawfully suspended by respondent – Applicant’s doctor advised B that booster shot was just precaution – Applicant arranged for blood test – Applicant claimed on third day of employment B told applicant employment withdrawn – Found probable respondent dismissed applicant on third day of employment - Applicant claimed B spoke to applicant’s husband (“R”) as upset – R claimed requested reason from B and was told applicant was dismissed as did not have current immunisation status – B claimed told R applicant’s injury should have been reported immediately but R did not listen to B’s reasons for dismissal – B did not contact applicant’s previous employer for further information – B denied did not tell applicant meeting’s purpose, claimed applicant refused to have meeting and insisted parties have conversation on telephone – B claimed told applicant dismissal not due to immunisation status but because applicant’s failure to tell B about injury was trust and confidence issue – Found some of B’s evidence inconsistent – Found trial period in parties’ EA invalid as applicant employed one day before EA took effect and trial period did not apply – Found applicant was not new employee when EA applied – Found EA not varied so trial period applicable when applicant started day earlier – Found was respondent’s responsibility to ensure EA signed when applicant’s employment commenced – Found therefore applicant entitled to claim unjustifiably dismissed by respondent – Found applicant unjustifiably disadvantaged as was not given opportunity to comment or have representation – Found respondent’s failure to make enquiries of applicant’s previous employer prejudiced applicant – Found applicant could have remained suspended while full investigation carried out and respondent did not ask applicant about injuries that could affect employment – Found fair and reasonable employer would not have concluded applicant withheld information - Dismissal unjustified - REMEDIES – No contributory conduct - $7,650 reimbursement of lost wages appropriate - $6,000 compensation appropriate - Dental Assistant |
| Result | Applications granted ; Reimbursement of lost wages ($7,650) ; Compensation for humiliation etc ($6,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s67A;ERA s67B |
| Cases Cited | Smith v Stokes Valley Pharmacy (2009) Ltd [2010] ERNZ 253 |
| Number of Pages | 14 |
| PDF File Link: | 2011_NZERA_Wellington_179.pdf [pdf 66 KB] |