| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 126 |
| Hearing date | 7 Dec 2011 |
| Determination date | 12 April 2012 |
| Member | K J Anderson |
| Representation | H Melrose ; J Clayton (in person) |
| Location | Auckland |
| Parties | Chen v Clayton & Anor |
| Other Parties | Custom Employment Events Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed employed applicant on casual basis - Respondent told applicant would provide written employment agreement (“EA”) after applicant returned from holiday – Applicant claimed parties agreed on hourly rate and that applicant would work fulltime – Applicant manager (“V”) resigned soon after employment commenced – Applicant took on V’s responsibilities in return for increase in hourly rate – Applicant claimed respondent director (“C”) told applicant would also be “new improved package” for applicant next month – Applicant drafted EA for C to sign but respondent failed to sign – Applicant claimed hours became irregular and C began sending applicant home early or applicant told not to come into work at all – Applicant claimed C said would not pay applicant to sit around doing nothing – Applicant claimed C said needed to take some time off and did not want to enter into fulltime EA with applicant – C claimed applicant aware employed on casual basis - Applicant claimed C asked applicant to return respondent property and said was no more work – Applicant dismissed – Authority found fair and reasonable employer would not have terminated applicant’s employment in circumstances although parties disputed applicant’s employment status – Found respondent should have discussed matter with applicant first and given applicant notice of dismissal – Dismissal unjustified – REMEDIES – No contributory conduct - Found after V’s resignation applicant’s belief became permanent employee reasonable – Found applicant entitled to reimbursement of wages from when took on V’s duties – $4,756 reimbursement of wages - $2,000 compensation appropriate – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Applicant sought payment for four public holidays – Found applicant had failed to provide details of arrears of holiday pay owing for four public holidays - Found $518 arrears of wages and $1,133 arrears of holiday pay due and owing – PENALTY – Applicant sought penalty for applicant’s failure to provide written EA – Found not appropriate to award penalty in circumstances – No penalty |
| Result | Applications granted (unjustified dismissal, arrears of wages and holiday pay) ; Reimbursement of lost wages ($4,756) ; Compensation for humiliation etc ($2,000) ; Arrears of wages ($518) ; Arrears of holiday pay ($1,133.80) ; No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA s66(4);ERA s66(6);ERA s103A;ERA s123;ERA s123(1);ERA s123(1)(b);ERA s124;ERA s128(2);Employment Relations Amendment Act 2010;Holidays Act 2003 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Auckland_126.pdf [pdf 43 KB] |