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Lawson v Parsons t/a Napier Contract Cleaning
7 Sep 2006, D Asher, WA 120/06, (7 pages)
UNJUSTIFIED DISMISSAL - Poor performance - Respondent claimed
applicant dismissed for poor performance after multiple warnings - Applicant
denied received complaints about performance or warned employment in jeopardy -
Accepted received requests to undertake specific tasks - Authority satisfied
applicant's version of events more credible - Given absence of job description
and extent of cleaning expected of applicant, Authority did not accept requests
supported claim of performance shortcomings - Respondent breached obligation to
give proper warnings - Dismissal procedurally and substantively unjustified -
Remedies - Insufficient evidence applicant effectively disabled by dismissal to
extent unable to pursue further employment for over nine months - Comment on
anticipated costs - Length of service 10 months -
Cleaner
Result: Application granted ; Reimbursement of lost wages ($1,797.51)(3 months) ; Compensation for humiliation etc ($5,000) ; Costs reserved
Moe v Mt Roskill Panelbeaters & Spraypainters Ltd
8 Aug 2006, M Urlich, AA 258/06, (3 pages)
UNJUSTIFIED DISMISSAL - Poor performance - Applicant alleged
dismissal premeditated and procedurally unfair - Applicant absent without
explanation after altercation with Managing Director ("MD") - On
return to work asked to meeting by MD - While not told purpose of meeting, given
circumstances and advice to bring "referee", Authority did not
accept applicant unaware of purpose - Applicant submitted did not receive fair
notice of possible consequences - Had already received warning and had other
disciplinary issues drawn to his attention - On notice employment in jeopardy -
Given conduct, would have been reasonably apparent serious disciplinary
consequences could result - No evidence to support allegation of
predetermination - MD put concerns to applicant and gave him opportunity to
respond - Applicant gave minimal explanation - MD alert to possible mitigating
circumstances and asked if applicant wanted to raise any issues - Entitled to
accept reply he did not - Dismissal justified - Length of service seven months
three weeks - Paint technician
Result: Application dismissed ; Costs reserved
Whitehouse v Moorhouse Construction Ltd
28 Jul 2006, P Montgomery, CA 110/06, (6 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Poor
performance - Employment agreement unsigned but recognised by respondent as
governing relationship - Applicant issued written warnings regarding performance
and requested to attend meeting - At start of meeting told would not be
dismissed - Dismissed at meeting for refusing to carry out instructions and
follow protocols - Previous warnings taken into account - Applicant not advised
employment at risk, instead told position under "review" -
Authority strongly of view review required employer to put concerns on table,
invite and listen to response, and take time to consider response before
deciding course of action - Did not happen here - Not advised entitled to have
representative present - Significant as required by employment agreement -
Authority also firmly of view that had parties had legal representation at
meeting outcome would likely have been significantly different - Unjustifiably
disadvantaged by first warning and by being denied right to respond to it -
Procedure so flawed and lacking in natural justice that issue of contribution
negated - Meeting outcome not predetermined but resulted from Director's loss of
composure - Dismissal unjustified - Remedies - Applicant sought lost
remuneration from dismissal to date of investigation - Respondent argued could
not be expected to pay applicant who decided to enter own business and was
unable to draw on its proceeds for significant period - Length of service
23½ months - Construction
Manager
Result: Application granted ; Reimbursement of lost wages ($13,000) ; Arrears of holiday pay (6 percent of lost wages) ; Compensation for humiliation etc ($17,000) ; Arrears of wages (bonuses)(Quantum to be determined) ; Costs reserved
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