| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 212 |
| Hearing date | 14 Mar 2012 - 15 Mar 2012 (2 days) |
| Determination date | 21 June 2012 |
| Member | R Arthur |
| Representation | J McClung (in person) ; N Elsmore |
| Location | Tauranga |
| Parties | McClung v Fencing Worx (BOP) Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed and disadvantaged by respondent’s actions – Authority found fair and reasonable employer would have commenced disciplinary process and given applicant opportunity to explain - Dismissal unjustified – Found applicant not unjustifiably disadvantaged by M’s refusal to pay advance on applicant’s holiday pay or by higher hourly rate paid to respondent’s contractor – REMEDIES - One third contributory conduct – Found applicant could have mitigated loss by accepting M’s offer of returning to work - Respondent to pay applicant $2,232 reimbursement of lost wages - $4,000 compensation appropriate - RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – Found insufficient evidence respondent failed to honour undertaking or applicant entitled to payment of bonus – Found alternatively no evidence of exceptional circumstances justifying delay in raising grievance - ARREARS OF WAGES – Found no evidence applicant entitled to arrears of travelling time - No arrears of wages |
| Abstract | Applicant claimed unjustifiably dismissed by respondent. Applicant claimed unjustifiably disadvantaged by respondent director (“M”) refusal to pay applicant advance on holiday pay, higher rate paid to respondent’s contractor, respondent not honouring undertakings and respondent’s failure to pay applicant bonus. Applicant claimed entitled to arrears of travelling time. M told applicant to collect holiday pay, wanted nothing more to do with applicant and was no further work available. Parties unsuccessfully attempted to resolve matter and applicant did not return to work. Respondent claimed applicant sent M abrasive texts and respondent had less work available. M claimed applicant had threatened to kill M and M’s children after M refused applicant’s request for advance on applicant’s holiday pay. Respondent claimed some grievances not raised within 90 day period.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Parties agreed applicant’s work more than casual and intended to be continuous throughout season. Applicant entitled to one week’s notice of termination of employment. Applicant made offensive comments about M’s children and wrongly insisted M pay applicant advance holiday pay. Fair and reasonable employer would have commenced disciplinary process and given applicant opportunity to explain. Dismissal unjustified. Applicant not unjustifiably disadvantaged by M’s refusal to pay advance on applicant’s holiday pay or by higher hourly rate paid to respondent’s contractor. REMEDIES: One third contributory conduct. Applicant could have mitigated loss by accepting M’s offer of returning to work. Respondent to pay applicant $2,232 reimbursement of lost wages. $4,000 compensation appropriate.;RAISING PERSONAL GRIEVANCE: Insufficient evidence respondent failed to honour undertaking or applicant entitled to payment of bonus. Alternatively no evidence of exceptional circumstances justifying delay in raising grievance.;ARREARS OF WAGES: No evidence applicant entitled to arrears of travelling time. No arrears of wages. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (33%) ; Reimbursement of lost wages ($2,232) ; Compensation for humiliation etc ($4,000) ; Applications dismissed (unjustified disadvantage, raising personal grievance and arrears of wages) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s114(4);ERA s115;ERA s124;ERA s128;ERA s174;ERA Second Schedule cl15 |
| Cases Cited | Jinkinson v Oceana Gold (NZ) Ltd [2009] ERNZ 225;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] 1 ERNZ 808 |
| Number of Pages | 16 |
| PDF File Link: | 2012_NZERA_Auckland_212.pdf [pdf 71 KB] |