| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 43 |
| Hearing date | 17 Feb 2012 - 1 Mar 2012 (2 days) |
| Determination date | 09 March 2012 |
| Member | D Appleton |
| Representation | J Herd ; G Cullen (in person) |
| Location | Nelson |
| Parties | Frost v Cullen and Anor |
| Other Parties | Cullen's Fruit and Veg Ltd |
| Summary | PRACTICE AND PROCEDURE - Identity of employer - Applicant claimed employed by first respondent (G") - Respondents claimed applicant employed by second respondent ("C") - Applicant's payslips issued by C and applicant paid from C's profit - Authority found applicant employed by C - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondents - Applicant claimed worked hours as required by respondent - Respondents claimed applicant had been undercharging customers or giving away produce for free causing loss to respondents - Parties did not have written employment agreement ("EA") - Respondent claimed was oversight and had EA in C's name intended to give to applicant - C claimed applicant casual employee - Found applicant often worked more than 20 hours per week and every week day - Found applicant's hours fluctuated depending on G and respondent's son ("J") availability - Found C would have required applicant to have valid reason if unable to work particular day - Found was regular pattern to applicant's hours and expectation of ongoing employment - Found applicant permanent part-time employee with fluctuating hours - G claimed when worked before or after applicant's shift noticed customers would come in and leave shop when saw applicant was not working - G claimed customer said "things were cheaper" when applicant working - G claimed same happened six times on particular day - G claimed profit reduced since applicant started and discovered product and till discrepancies after applicant had been working in shop - Respondent's son ("B") claimed noticed takings very low when visited shop and takings were lot lower than when applicant had not been working - B claimed overhead applicant tell customers had to "charge you something this time" and applicant significantly undercharged customers - Applicant claimed other produce B had seen in customers' bags must have been purchased at another shop - Found B did witness applicant selling significantly discounted produce without permission - G claimed decided not to use applicant's services anymore after applicant yelled outside workplace had been dismissed and urging customers not to shop at C - Found on balance of probabilities applicant had told customers not to shop at C - Applicant claimed B accused applicant of taking money from till and raised performance concerns - Applicant claimed J told applicant needed to cut costs and would call if needed applicant in future - Applicant claimed not called by respondent and believed had been dismissed - Found applicant not dismissed until G discovered applicant told customers not to shop at C - G did not speak to and did not instruct C or J to speak to applicant about allegations undercharged customers and had told customers not to shop at C - Found J misled applicant when said dismissed as C not doing well - Dismissal unjustified - REMEDIES - 75 per cent contributory conduct - $1,750 compensation appropriate - $831 reimbursement of lost wages - Found respondents' financial position did require order for instalments - Respondent to pay applicant four $645 monthly instalments - PENALTY - Applicant sought penalty for respondents' failure to provide EA - Found as G had admitted failure to provide EA was oversight and under pressure when employed applicant penalty inappropriate - No penalty - Retail Assistant" |
| Result | Applications granted ; Contributory conduct (75%) ; Reimbursement of lost wages ($831) ; Compensation for humiliation etc ($1,750) ; Application dismissed (penalty) |
| Main Category | Personal Grievance |
| Statutes | ERA s63A(3);ERA s65;ERA s103A;ERA s123;ERA s123(1)(b);ERA s123(2);ERA s123(3);ERA s124;ERA s128 |
| Cases Cited | Colosimo v Parker (2007) 8 NZELC 98,622;Jinkinson v Oceana Gold (NZ) Ltd [2009] ERNZ 225;Lee v Minor Developments Ltd t/a Before Six Childcare Centre unreported, Shaw J, 23 December 2008, AC 52/08;Mehta v Elliot (Labour Inspector) [2003] 1 ERNZ 451 |
| Number of Pages | 16 |
| PDF File Link: | 2012_NZERA_Christchurch_43.pdf [pdf 75 KB] |