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Hardgrave v CustomKit Buildings Ltd
1 May 2007, RA Monaghan, AA 135/07, (17 pages)
UNJUSTIFIED DISMISSAL - Poor performance - Respondent claimed applicant resigned prematurely when performance and commitment issues raised - Applicant injured knee and not able to work - Manager found several serious mistakes in applicant's work - Meeting held to discuss mistakes - Applicant claimed needed more training and assistance, and gave no explanation for mistakes - Manager reasonably concluded applicant unresponsive and unapologetic - Advised applicant to consider resigning - Manager made angry statements to applicant told him he wanted to keep job - Another meeting held to discuss mistakes and applicant's unwillingness to work extra hours - Manager suggested applicant return on trial period - Applicant later advised would not return to work - Manager went beyond merely expressing anger, frustration or inconsiderate conduct - When first raised concerns was open to possibility of explanation - Should have used performance management or disciplinary process and kept open mind - Instead, raised prospect of resignation - Unlikely manager's mind open to applicant continuing employment - Viewed employment relationship as having no future - Repudiatory conduct - Discussion of trial period not sufficient to rescue employment relationship - Constructive dismissal - Given finding, not necessary to consider disadvantage grievance or lack of good faith claims - Remedies - Large number of unexplained mistakes - Contributory conduct 50 percent - Claim applicant would have been justifiably dismissed anyway too speculative - Grievance a causative factor of applicant's major clinical depression
Result: Application granted ; Reimbursement of lost wages ($26,000 reduced to $13,000) ; Compensation for humiliation etc ($20,000 reduced to $10,000) ; Costs reserved
Hollands v Jam Marketing Pty Ltd
31 Jul 2007, D King, AA 179A/07, (3 pages)
UNJUSTIFIED DISMISSAL - Poor performance - No appearance for respondent - No written employment agreement - Earlier determination found applicant an employee - Matter determined on applicant's uncontested evidece - Applicant employed to sell timeshare properties on salary plus commission basis - Within two months told was being let go because was “a round peg in a square hole” - Not given any indication employment at risk or opportunity to comment - Manner dismissal affected "brutal" - Decision predetermined - Dismissal unjustified - PENALTY - Respondent intended to provide employment agreement but failed to do so - Penalty appropriate - COSTS - Applicant entitled to costs - Applicant to forward details of expenditure incurred to Authority
Result: Application granted ; Reimbursement of lost wages ($5,000)(10 weeks) ; Compensation for humiliation etc ($8,000) ; Penalty ($3,000)(Payable to Crown)
Kessell v Harris Transport (1974) Ltd
6 Jun 2007, GJ Wood, WA 90/07, (7 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Poor performance - Summary dismissal - Applicant responsible for scheduling transport jobs and organising staff - Received three written warnings for forgetfulness and mismanagement of jobs - Delay in issuing of third warning - Manager unaware applicant had diabetes - Often neglected to take medication, resulting in forgetfulness - Manager angry with applicant after day's work lost - Applicant called in sick by email next day - Manager sent email terminating employment due to "performance issues" - Respondent claimed in statement in reply dismissed applicant for serious misconduct - Evidence showed applicant clearly dismissed for poor performance - Basic tenets in Trotter v Telecom Corporation of New Zealand Ltd (cited below) not followed - Test of serious or repeated failure deliberateness - Manager acknowledged problem not any deliberate failure to follow instructions - Reasons for warnings raised cursorily if at all - No fair opportunity to answer respondent's concerns - Disciplinary meeting should have been held - Applicant may have disclosed condition and altered manager's perspective - Whole disciplinary and dismissal process fundamentally flawed given applicant had minimal involvement in it - Not given clear information what improvements required, how improvement would be measured or time frames to make them - Dismissal unjustified - Remedies - Applicant responsible for proper management of diabetic condition - Respondent not required to pay for results of applicant's illness on its business - Could have alleviated matters if had been informed of condition - Applicant responsible for many of manager's concerns - However, not responsible for gross breaches of fair and reasonable treatment - Contributory conduct 33.33 percent - PENALTY - Applicant claimed penalties for breach of contract and good faith - Penalties not to be added to remedies for unjustified dismissal in normal course of events - Justice of case met by lost wages and compensation awards - Operations Manager
Result: Application granted ; Reimbursement of lost wages ($9,750 reduced to $6,500) ; Compensation for humiliation etc ($12,000 reduced to $8,000) ; Costs reserved
Mosen v Anfield Engineering Ltd
12 Jun 2007, V Campbell, AA 171/07, (6 pages)
UNJUSTIFIED DISMISSAL - Poor performance - Triangular employment relationship - Respondent contracted to company ("C") and undertook work at C's direction - Applicant employed on short fixed term agreement - Agreement included motel accommodation - Supervisor ("R") concerned about applicant's skill level and provided assistance - Applicant not made of aware of concerns - C's foreman raised concerns about quality of applicant's welding work asked him to complete welding "test" - Applicant unaware was a test - C's supervisor told R work not to acceptable standand and applicant not to undertake further work - One week after commenced employment R told applicant had not passed test and had to be "let go" - Advised of opportunity to work at different site - Applicant insisted on meeting to discuss situation - At meeting agreed applicant would undertake further work trial - Applicant discovered bags packed when returned to motel before trial - Applicant accepted offer of work out of town and left - Respondent claimed employment abandoned - Applicant not warned of poor performance or given specific information on problems and clear steps on improvements needed before dismissed - Procedural fairness absent - Dismissal substantively and procedurally unjustified - Unjustified dismissal quickly rescinded at instigation and agreement of applicant - Change in accomodation arrangements result of miscommunication - Applicant's actions in leaving town without notice and without completing trial led Authority to conclude applicant left of own accord - Contingent on applicant to stay and complete trial - Overturning of dismissal and agreement by applicant to undergo trial cured respondent's previous failures
Result: Application dismissed ; Costs reserved
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