| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 39 |
| Hearing date | 23 Jan 2012 |
| Determination date | 27 January 2012 |
| Member | R A Monaghan |
| Representation | M Clark (in person) ; no appearance |
| Location | Auckland |
| Parties | Clark v The Swedish Sauna Co Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Poor Performance - Applicant claimed unjustifiably dismissed by respondent – No appearance for respondent - Respondent claimed applicant’s employment subject to 90 day trial period – Parties did not have written employment agreement (“EA”) – Parties discussed applicant’s experience and nature of position and respondent asked applicant to start immediately – Respondent dissatisfied with quality of work applicant produced – Applicant claimed respondent dissatisfied as only saw applicant’s unfinished work - Respondent paid applicant for work done by cheque but applicant unable to cash cheque – Applicant requested payment in cash – Applicant claimed respondent sent applicant text message that applicant dismissed - Authority found parties entered into employment relationship and applicant dismissed – Found 90 day trial period not applicable as parties did not have written EA and therefore applicant not prevented from bringing personal grievance – Applicant claimed respondent failed to respond to applicant’s requests for reasons for dismissal - Authority accepted applicant’s evidence and found respondent’s conclusion that applicant’s work did not meet acceptable standard not conclusion of fair and reasonable employer - Dismissal unjustified – REMEDIES – Found applicant did not attempt to find alternative employment - $4,000 reimbursement of lost wages – $3,000 compensation appropriate – ARREARS OF WAGES AND HOLIDAY PAY – RECOVERY OF MONIES - Applicant sought payment for week’s work plus reimbursement for petrol costs – Applicant claimed respondent failed to provide wage and time records - Respondent to pay applicant $750 arrears of wages and $40 reimbursement for petrol costs – Respondent to pay applicant $116 arrears of holiday pay – PENALTY – Applicant sought penalties for respondent’s failure to provide written EA and breach of good faith duty – Found no reason provided for respondent’s failure to provide written EA and penalty appropriate - $500 penalty appropriate – Found penalty for breach of duty of good faith not appropriate – PRACTICE AND PROCEDURE - Applicant sought order respondent return applicant’s property – Found no grounds for Authority to order respondent return applicant’s property - Builder/Cabinetmaker |
| Result | Applications granted (unjustified dismissal, arrears of wages and holiday pay, recovery of monies and penalty (employment agreement)) ; Reimbursement of lost wages ($4,000) ; Compensation for humiliation etc ($3,000) ; Arrears of wages ($750) ; Arrears of holiday pay ($116) ; Recovery of monies ($40) ; Penalty ($500)(payable to applicant) ; Applications dismissed (penalty (good faith) and practice and procedure) ; No order for costs ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4A;ERA s63A;ERA s63A(3);ERA s65;ERA s65(4);ERA s67A;ERA s67B;ERA Second Schedule cl12 |
| Cases Cited | Mason Engineers (NZ) Limited v Hodgson (No 4) [2011] NZEMPC 147 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Auckland_39.pdf [pdf 37 KB] |