| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 142 |
| Hearing date | 15 Feb 2012 |
| Determination date | 26 April 2012 |
| Member | R Larmer |
| Representation | E Walker ; R Harrison |
| Location | Auckland |
| Parties | Ten Hoorn Boer v Reid Research Services Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed dismissed applicant as told by Immigration New Zealand (“INZ”) applicant not legally entitled to work – Respondent claimed ended employment as soon as possible to avoid committing offence – Respondent acknowledged did not conduct investigation before dismissal and did not give applicant opportunity to comment – Respondent later discovered INZ information incorrect and applicant legally entitled to work for respondent – Applicant’s work visa application declined after INZ informed applicant dismissed and interim visa immediately withdrawn - Authority found if applicant given opportunity to comment respondent could have avoided dismissing applicant – Applicant required work visa to legally work in New Zealand – Applicant granted interim work visa (interim visa") while INZ processed application for extension of work visa – Interim visa expired immediately if applicant left New Zealand but otherwise valid until visa extension application processed – Respondent approved applicant taking annual leave while on interim visa to leave New Zealand so could see family – Found respondent aware applicant on interim visa which would expire if applicant left New Zealand – Respondent cancelled applicant’s flights to visit family as applicant unable to travel on interim visa – Respondent called INZ and INZ confirmed applicant on interim visa on condition applicant employed – Respondent claimed called INZ again when discovered applicant could not leave country on interim visa – INZ told respondent applicant should not be working for respondent at all as INZ records showed applicant had changed employer – INZ confirmed had given respondent incorrect information as applicant had never advised INZ had changed employer and applicant entitled to continue employment with respondent – Prior to dismissal respondent director (“R”) raised concerns about applicant’s behaviour – Incident and other issues caused applicant stress and applicant took sick leave – Applicant told manager (“X”) believed abuse from R caused applicant’s health issues – Applicant believed dismissal due to applicant’s comments about R to X and visa issues respondent's excuse - Found Immigration Act 2009 did not “trump” s103A Employment Relations Act 2000 requirements – Found fair and reasonable employer would not have concluded INZ information reliable before discussed matter with applicant – Found respondent did not raise concerns with applicant therefore applicant not given reasonable opportunity to respond – Found even if applicant no longer entitled to employment with respondent, respondent should have given applicant notice and respondent would not have been acting unlawfully if done so - Dismissal unjustified – REMEDIES – No contributory conduct - Found lost remuneration appropriate – Parties to determine quantum – Found applicant suffered significant distress, humiliation and loss of dignity and award at higher end of scale appropriate - $10,000 compensation appropriate – Found compensation for applicant’s loss of benefit of right to work and reimbursement of expenses not appropriate - ARREARS OF WAGES – Applicant sought $1,257 arrears of wages – Respondent claimed applicant not guaranteed minimum number of weekly hours and during recession offered employees option of completing lower level work at lower hourly rate – Respondent acknowledged did not tell applicant would be paid at lower rate first time applicant offered lower level work – Found applicant not obliged to accept lower level work and applicant aware after first time would be paid at lower rate – Respondent to pay applicant $10 arrears of wages - PENALTY – GOOD FAITH - Respondent denied deliberately breached parties’ employment agreement or good faith obligations – Authority found although respondent breached EA and good faith obligations, penalties inappropriate as remedies awarded to applicant due to successful personal grievance claim – No penalty - Field Manager" |
| Result | Applications granted(unjustified dismissal and arrears of wages) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($10,000) ; Arrears of wages($10) ; Application dismissed(penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4A;ERA s4(1);ERA s4(1A);ERA s4(1A)(b);ERA s4(1A)(c)(i);ERA s4(1A)(c)(ii);ERA s103A;ERA s103A(3);ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s103A(4);ERA s103A(5);ERA s124;ERA s128(3);ERA s133;ERA s133(1)(a);ERA Second Schedule cl11;Immigration Act 2009 s350;Immigration Act 2009 s350(1)(a);Immigration Act 2009 s350(6);Immigration Act 2009 s350(7) |
| Cases Cited | Meharry v Guardall Alarms New Zealand Ltd [1991] 3 ERNZ 305;Salt v Fell [2006] ERNZ 449;Xu v McIntosh [2004] ERNZ 448 |
| Number of Pages | 36 |
| PDF File Link: | 2012_NZERA_Auckland_142.pdf [pdf 152 KB] |