| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 83/02 |
| Hearing date | 3 Sep 2002 |
| Determination date | 06 September 2002 |
| Member | D Asher |
| Representation | A Cressey ; G Ogilvie |
| Location | Wellington |
| Parties | McIntosh v Xu & Anor |
| Other Parties | Naenae Auto Serice Station Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - Alleged unlawful suspension - Alleged unlawful deduction of wages - Policy of deducting money from wages for theft by customers - Final written warning issued for lateness - Suspended without consultation or pay - Suspension procedurally unfair - Motive for suspension was to obtain money for customer thefts - Suspension substantively unjustified - Unlawfully withheld wages to gain consent for deductions - Disadvantage claim made out - UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Suspended without pay - Alleged applicant resigned while suspended - Suspension was for indefinite period - Failed to contact applicant - Applicant did not resign - Arbitrary suspension for indefinite period amounted to constructive dismissal - Dismissal unjustified - PENALTY - Deductions of wages without consent illegal - Significant breaches of Wages Protection Act 1983 - Significant breaches of ERA - Penalty appropriate |
| Result | Application granted ; Reimbursement of lost wages ($8,347.50)(25 weeks) ; Compensation for humiliation etc ($6,500) ; Penalty ($4,500)(Payable to Crown) ; ($500)(Payable to applicant) ; Costs reserved |
| Statutes | ERA s64(2);ERA s64(3);ERA s65(1);Wages Protection Act 1983 s4 |
| Cases Cited | Auckland City Council v Hennessey [1982] ACJ 699;Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963 ; [1985] 2 NZLR 372;Curlew v Harvey Norman Stores (NZ) Pty Ltd [2002] 1 ERNZ 114;Tawhiwhirangi v Attorney-General in respect of the Chief Executive, Department of Justice [1994] 1 ERNZ 459 |
| Number of Pages | 17 |
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