The dismissal of an "unpunctual, sloppy, distracted" employee who used the internet excessively was unjustified because he did not know his job was in jeopardy, the Employment Relations Authority says.
Nicholas Bettany was employed as an architectural draughtsperson by Masonry Design Solutions Ltd, based at Albany north of
Auckland, on a three-month fixed term contract in 2006.
Towards the end of the contract managing director Mark Wilson told Mr Bettany that because there was plenty of work coming into the business he was making the position permanent.
He said he told Mr Bettany on November 17 that if his timekeeping and work output improved the job would not be advertised and he would be kept on.
But instead of improving, Mr Bettany's work performance continued to slip and on November 29 he was dismissed without notice.
Mr Wilson said checks showed that in a 12 day period Mr Bettany had visited 900 different internet or email sites during work hours.
He also had poor timekeeping and low work output.
He said what he told Mr Bettany on November 17 was a clear warning that if he did not improve his job was in jeopardy.
Mr Bettany said the issues were discussed but he was not aware they were a "huge concern".
The authority said Mr Bettany's internet use, while excessive, did not amount to serious misconduct.
It said Mr Wilson failed to warn Mr Bettany that a failure to improve would put his job in jeopardy. This mean his termination was unjustified because it was procedurally unfair.
It said Mr Bettany had lost wages of $5362 and an award of $5000 would be appropriate for hurt and humiliation.
But because his "blameworthy" conduct had contributed substantially to the situation leading to his dismissal the awards were halved. The employer was ordered to pay $2681 in lost wages and $2500 for humiliation.
The employer counterclaimed, seeking $18,000 to cover the costs of work produced by Mr Bettany that had to be redone.
The authority said that even in the eyes of a layperson Mr Bettany's work was "obviously, consistently and unacceptably shoddy".
But the counterclaim failed because it was not established that Mr Bettany knew his work was so bad that it would have to be completely redone.
- NZPA
