| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 5 |
| Hearing date | 27 Sep 2011 |
| Determination date | 10 January 2012 |
| Member | A Dumbleton |
| Representation | J Foster ; no appearance (first respondent), D Gelb |
| Location | Auckland |
| Parties | Stewart v Ashtar NZ Ltd and Ors |
| Other Parties | Schanan, Sabhan |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY - UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by first respondent (“A”) – No appearance for A – Applicant existing employee of business A purchased – Second and third respondents directors of A – Applicant sought to maintain arrangement had with previous employer where applicant had right to personally provide services to particular customers for direct reward – Parties disputed whether list of particular customers applicant’s property – A issued written warning – Applicant claimed warning lacked sufficient detail for applicant to understand nature of complaints – Authority found applicant did not give A reasonable cause for warning to be issued – Applicant resigned and gave A one week’s notice – A told applicant not required to work final week – Respondent issued trespass notice next day preventing applicant from returning to workplace – Applicant began employment at another local salon – Found A had not justified warning – Found applicant constructively or actually dismissed by A either when applicant resigned or when applicant received trespass notice – Dismissal unjustified – REMEDIES – No contributory conduct - $8,000 compensation appropriate - $3,097 reimbursement of lost wages including arrears of wages and holiday pay – Interest payable - PENALTY – Applicant sought penalty against A and second and third respondents as secondary parties to A’s breach of parties’ employment agreement (“EA”) – Found A failed to advise applicant when parties bargained EA that applicant entitled to seek independent advice – Found A failed to give applicant reasonable opportunity to seek independent advice - $3,000 penalty against A appropriate – Found second and third respondents aided, abetted or incited A’s breach of parties’ EA – $2,500 penalty against second and third respondents respectively appropriate - COSTS – Length of investigation meeting not specified - A withdrew previous claim applicant had breached restraint of trade, failed to return A’s property or forfeit wages after gave inadequate notice – Found A’s claim had little if any legal merit – A to pay applicant $17,000 contribution towards costs relating to respondent’s withdrawn counter claim – Hairstylist |
| Result | Applications granted ; Reimbursement of lost wages including arrears of wages and holiday pay ($3,097.85) ; Interest (5%) ; Compensation for humiliation etc ($8,000) ;;Penalty ($1,500)(Payable to Crown by first respondent) ($1,500)(Payable to applicant by first respondent) ($750)(Payable to Crown by second respondent) ($1,750)(Payable to applicant by second respondent) ($750)(Payable to Crown by third respondent) ($1,750)(Payable to applicant by third respondent) ; Costs in favour of applicant (relating to costs incurred by applicant due to respondent’s withdrawn counter claim) ($17,000) ; Costs reserved (relating to applicant’s claim) |
| Main Category | Personal Grievance |
| Statutes | ERA s63A;ERA s63A(2);ERA s103A;ERA s134;ERA s134(2);ERA s135;Trespass Act 1980 |
| Cases Cited | Ashtar NZ Ltd v McKay [2011] NZERA Auckland 385;Peacock v New Zealand Performance and Entertainment Workers’ Union (1990) ERNZ Sel Cas 761 |
| Number of Pages | 8 |
| PDF File Link: | 2012_NZERA_Auckland_5.pdf [pdf 35 KB] |