| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 6 |
| Hearing date | 28 Oct 2011 |
| Determination date | 10 January 2012 |
| Member | E Robinson |
| Representation | E Hartdegen ; D Grindle |
| Location | Whangarei |
| Parties | Hartung v McKay Electrical Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed by respondent – Applicant and recruitment agency principal (“M”) disputed whether M stated that applicant’s airfare would be paid by respondent – Respondent Chief Executive Officer (“F”) and respondent human resources manager (“G”) claimed told applicant that respondent would not pay for applicant’s and applicant’s wife’s (“W”) travel costs – M claimed explained to applicant that delays in obtaining work visa would necessitate “border runs” – F informed applicant that continued guaranteed employment not possible – Applicant claimed informed F and G had medical condition but G had assured applicant and F that applicant capable of carrying out position – Applicant and F and G disputed whether F and G stated applicant and W would be covered by Southern Cross Health Insurance (“S”) whilst applicant working for respondent – S accepted applicant’s application but cancelled policy shortly thereafter – H claimed respondent had paid for applicant’s and W’s airfares but G later requested payment – Applicant paid for airfares – Applicant claimed told respondent would not travel unless had work visa and respondent said work visa would be stamped into passport upon entry into country – G claimed told applicant respondent endeavoured to speed up process of obtaining work visa but situation outside of respondent’s control – Applicant claimed believed work visas would be ready on arrival and therefore decided to travel prior to receiving work visa – Applicant did not receive work visa upon arrival – Applicant claimed respondent told employees without work visas to leave work for two weeks on reduced pay – Applicant claimed did not agree to reduction – Respondent project manager (“D”) claimed employees’ access to work cancelled but rate of remuneration not affected – Applicant turned down supervisor position due to health condition – D claimed received email from ship builders representative (“J”) which stated applicant was to be removed from site immediately – Applicant claimed J said employment had been terminated as discovered applicant had pre-existing medical issue – Authority found applicant subject to valid fixed term agreement on basis agreement specified genuine reason based on reasonable grounds for termination of employment – Found applicant advised by F of reasons for fixed term nature of employment – Found applicant justifiably dismissed as result of specified event in employment agreement arising – Dismissal justified – BREACH OF FAIR TRADING ACT 1986 – Applicant claimed respondent breached s12 Fair Trading Act 1986 (“FTA”) by not informing client of applicant’s medical condition prior to starting work for respondent – Respondent claimed not required to disclose applicant’s medical issue with client – Found applicant had downplayed medical condition – Found not incumbent on respondent to inform client of applicant’s medical condition as not term of contract between respondent and client and not reasonably foreseeable that acceptance would be required – Found no reason for respondent to consider applicant’s medical condition could affect ability to perform duties – Found respondent did not breach s12 FTA – BREACH OF CONTRACTUAL REMEDIES ACT 1979 – Applicant claimed respondent breached s6 Contractual Remedies Act 1979 (“CRA”) by stating applicant’s and W’s airfare would be paid by respondent – Found no misrepresentation on part of respondent in relation to payment of airfares – Applicant claimed misrepresentation in relation to medical expenses – Applicant eligible for medical expenses under respondent travel policy irrespective of work visa but applicant had not completed relevant forms – Found appropriate that respondent accepted responsibility for medical expenses – Found medical expenses incurred by applicant reimbursed in full by respondent – Found respondent did not breach s6 CRA – GOOD FAITH – Applicant claimed by not disclosing medical condition to client respondent did not act in good faith – Found no breach of good faith for not disclosing medical condition – Found no evidence to substantiate claim respondent made client aware of applicant’s medical condition – UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent – Applicant claimed suffered from stress and anxiety as result of working without work visa – Found applicant accepted employment knowing that had no work visa – Found respondent had made every effort to obtain work visas for employees but actual timing of issue was outside control – Found no unjustifiable disadvantage – Applicant claimed as result of having no work visa was unable to open local bank account – Found having local bank account not part of applicant’s terms and conditions of employment and was not reasonable for applicant to expect it to be – Found no unjustifiable disadvantage – Applicant claimed as result of having no work visa was unable to obtain driver’s licence or hire motor vehicle – Found no unjustifiable disadvantage – Applicant claimed as result of having no work visa was unable to obtain alcohol licence – Found no unjustifiable disadvantage – Applicant claimed was harassed by other respondent employees with work visas as result of immigration inspection – Found once aware of unacceptable situation of harassment affecting applicant D took effective action – Found no unjustifiable disadvantage |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s66;ERA s66(2)(a);ERA s66(2)(b);ERA s103(1)(b);Contractual Remedies Act 1979 s6;Fair Trading Act 1986 s12 |
| Number of Pages | 17 |
| PDF File Link: | 2012_NZERA_Auckland_6.pdf [pdf 83 KB] |