| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 122 |
| Hearing date | 29 Mar 2012 |
| Determination date | 21 June 2012 |
| Member | H Doyle |
| Representation | B Ross (In person) ; No Appearance |
| Location | Timaru |
| Parties | Ross v Lazer Tech 2005 Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent - Authority found although parties’ EA stated employment casual, relationship became permanent and applicant not casual employee when employment ended - Found respondent did not act as fair and reasonable employer in all circumstances - Dismissal unjustified - REMEDIES - No contributory conduct - Respondent to pay applicant $18,275 reimbursement of lost wages - Interest payable - $6,000 compensation appropriate - RECOVERY OF MONIES: Respondent to pay applicant $449 as reimbursement of costs incurred by applicant in obtaining heavy traffic licence - ARREARS OF HOLIDAY PAY – Found applicant not entitled to be paid further holiday pay as employment less than 12 months - No arrears of holiday pay |
| Abstract | Applicant claimed unjustifiably dismissed by respondent and sought reimbursement of heavy traffic licence cost. Applicant sought arrears of holiday pay. Applicant was paid in petrol vouchers when began working for respondent. Parties’ employment agreement (“EA”) stated applicant casual but applicant claimed more than casual employment. Applicant had exchange with respondent former owner (“J”). Applicant claimed after exchange J told applicant was incompetent and J did not know if had work for applicant. Respondent claimed applicant involved in serious health and safety incident. Applicant claimed continued to work for respondent for two days but on third day J told applicant to take all tools and leave work site. Applicant returned to work and was told respondent had no more work available and applicant not allowed back to work site. Respondent claimed applicant casual employee therefore not dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant’s wage and time records showed employment regular and consistent. Although parties’ EA stated employment casual, relationship became permanent and applicant not casual employee when employment ended. Likely applicant’s employment ended because J made complaint about applicant to respondent. Respondent did not act as fair and reasonable employer in all circumstances. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $18,275 reimbursement of lost wages. Interest payable. $6,000 compensation appropriate.;RECOVERY OF MONIES: Respondent to pay applicant $449 as reimbursement of costs incurred by applicant in obtaining heavy traffic licence.;ARREARS OF HOLIDAY PAY: Applicant already paid holiday pay as identifiable part of applicant’s wage. Applicant not entitled to be paid further holiday pay as employment less than 12 months. No arrears of holiday pay. |
| Result | Applications granted (unjustified dismissal and recovery of monies) ; Reimbursement of lost wages ($18,275.30) ; Interest (5%) ; Compensation for humiliation etc ($6,000) ; Recovery of monies ($449) ; Application dismissed (arrears of holiday pay) ; No order for costs ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s124;ERA Second Schedule c11;Holidays Act 2003 s28(1);Holidays Act 2003 s28(4);Judicature Act 1908 s87(3) |
| Cases Cited | Avenues Restaurant Ltd v Northern Hotel IUOW [1991] 1 ERNZ 420;Barnes v Whangarei Return Services Association Inc [1997] ERNZ 626;Jinkinson v Oceania Gold (NZ) Ltd [2009] ERNZ 225 |
| Number of Pages | 11 |
| PDF File Link: | 2012_NZERA_Christchurch_122.pdf [pdf 145 KB] |