| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 87 |
| Determination date | 10 May 2012 |
| Member | D Appleton |
| Representation | J Goldstein ; P Butler |
| Location | Christchurch |
| Parties | Patalano v Navigation Resources Ltd T/A Map World |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed – Authority found no breach of duty by respondent amounting to repudiation of employment agreement – No dismissal – Found respondent’s failure to consult applicant before altering applicant’s terms of employment unjustifiably disadvantaged applicant – Found respondent’s failure to notify applicant of decision not to pay applicant holiday pay unjustifiably disadvantaged applicant – REMEDIES – No contributory conduct - $5,000 compensation appropriate – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages – Found applicant agreed to salary reduction – Found impossible to quantify overtime worked by applicant – No arrears of wages – PENALTY – Applicant sought penalty for inadequate employment agreement – Found application for penalty out of time – No penalty |
| Abstract | Applicant employed by respondent as sales assistant. Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed. Applicant sought arrears of wages and penalty for inadequate employment agreement. Respondent’s business affected by Christchurch earthquake and respondent reduced employees’ salaries. Applicant claimed did not agree to salary reduction. While applicant on leave respondent offered applicant new role and respondent’s owner decided applicant would not be paid holiday pay. Roster altered so that applicant worked one in three Saturdays. On applicant’s return, applicant demanded payment of salary at pre-earthquake rate, back-dated to Christchurch earthquake, and stated would not return to work until matter resolved. Respondent reiterated offer of new position. Applicant resigned. Applicant claimed not paid appropriate salary, expected to work long hours and had hours increased without consultation. Applicant claimed not paid overtime. Applicant claimed initially offered better role than more recent offer by respondent and respondent failed to provide applicant with job description. Applicant claimed constructively dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: No breach of contract with respect to reduction of applicant’s salary. Applicant worked long hours willingly to rebuild respondent’s business. Applicant’s refusal to work until salary issue resolved meant reasonable for respondent to not hand over job description until issue resolved. Position offered to applicant not lesser than position offered previously. Decision to roster applicant to work one in three Saturdays alteration of applicant’s terms of employment without consultation. Decision to alter applicant’s terms of employment did not cause applicant’s resignation but lack of consultation constituted unjustified disadvantage. Respondent’s refusal to pay holiday pay did not cause applicant’s resignation as applicant paid before resigning but respondent’s failure to tell applicant of decision not to pay holiday pay constituted unjustified disadvantage. Respondent told applicant might be difficult to maintain working relationship with applicant but comments not causative of applicant’s resignation. Main cause of applicant’s resignation mistaken belief applicant’s salary reduced unilaterally and no breach of duty by respondent amounting to repudiation of employment agreement. No dismissal. REMEDIES: No contributory conduct. $5,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant agreed to salary reduction. Salary reduction not intended to be permanent but no agreement as to length of time variation effective. No agreement to raise applicant’s salary so reduced salary remained effective. Applicant entitled to overtime but impossible to quantify overtime worked. No arrears of wages.;PENALTY: Applicant should have known about defects in employment agreement when signing agreement. Application for penalty out of time. No penalty. |
| Result | Application granted (unjustified disadvantage); $5,000 compensation for humiliation etc; Applications dismissed (unjustified dismissal)(arrears of wages and holiday pay)(penalty); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(b);ERA s65;ERA s103(1)(b);ERA s103A;ERA s123(1);ERA s123(1)(b);ERA s123(1)(c);ERA s124;ERA s135(5);Wages Protection Act 1983 s4;Wages Protection Act 1983 s5(1);Wages Protection Act 1983 s6(2) |
| Number of Pages | 28 |
| PDF File Link: | 2012_NZERA_Christchurch_87.pdf [pdf 239 KB] |