| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 134 |
| Determination date | 02 July 2012 |
| Member | P Cheyne |
| Representation | L Ryder ; A Eveleigh |
| Parties | Cooke v JKL Entertainment Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – Authority found respondent had taken reasonable steps to manage risk that threatening response from customer may cause mental or physical harm to applicant – Found applicant did not know respondent had no health and safety policy and unaware of standard operating procedures (“SOP”) until after applicant’s resignation so failure to have health and safety policy or any breach by respondent of SOP did not cause resignation – No dismissal – BREACH OF CONTRACT – Found respondent’s breach of any contractual obligation to have health and safety policy did not cause either of the two incidents – Found no harm caused by any breach of respondent’s duty to conduct proper investigation into incidents and no practicable but effective steps open to respondent to minimise risk of further incident – No breach of contract – PENALTY – Applicant sought penalties for respondent’s alleged breach of Wages Protection Act 1983 and Minimum Wage Act 1983 – Found respondent wilfully retained money deducted unlawfully after applicant informed respondent of legal requirements for deductions and requested money be repaid – $1,000 penalty appropriate for breach of Wages Protection Act 1983 – Found applicant’s annual leave paid at less than minimum wage but underpayment unintentional and resulted from administrative error – No penalty for breach of Minimum Wage Act 1983 – Customer sales representative |
| Abstract | Applicant employed by respondent as customer sales representative. Applicant claimed unjustifiably dismissed by respondent. Applicant sought penalties for respondent’s alleged breach of Wages Protection Act 1983 and Minimum Wage Act 1983. Applicant had sole charge of store when received phone call complaining about applicant. Caller demanded manager’s (“G”) home phone number and became abusive when applicant refused to supply number. On same day applicant approached by customer demanding refund for faulty product. Applicant explained unable to grant refund but after customer supported by two other customers applicant eventually granted refund to get customer to leave store. Applicant spoke to G about incidents. G declined to display written refunds policy and told applicant to communicate policy to customers in positive manner. G told applicant could call security firm if necessary. G agreed to supply applicant copy of respondent’s health and safety policy referred to in employment agreement (“EA”). Applicant resigned. Applicant claimed constructively dismissed. Applicant claimed respondent failed to minimise harm to applicant by displaying written refunds policy and did not have a health and safety policy. Applicant claimed respondent failed to show applicant standard operating procedures (“SOP”) containing promise respondent would investigate reports of harassment, which applicant claimed respondent breached. Applicant claimed respondent failed to follow training procedures in SOP. After applicant gave notice of resignation respondent deducted money from applicant’s wages representing half value of game stolen by customer. Respondent claimed applicant caused loss by failing to follow correct procedure when signing up new customers. Applicant informed respondent applicant had not provided consent for deduction and instructed respondent not to make further deductions. Respondent claimed EA allowed deductions for any monies owing to respondent. Respondent did not make further deduction but refused to repay amount deducted until applicant initiated legal proceedings. Applicant claimed annual leave paid at less than minimum wage.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent entitled to have policy restricting who can give refunds and such policies protect staff by allowing them to deflect customers’ demands. Immaterial whether deflection by pointing at written notice or by verbal response. Respondent entitled to tell applicant first way of dealing with disgruntled customer applicant’s customer management skills and respondent had arrangement with security firm. Respondent not obliged to guarantee absence of stress and had taken reasonable steps to manage risk that threatening response from customer may cause mental or physical harm to applicant. Respondent’s failure to have health and safety policy not factor in applicant’s resignation as applicant did not know respondent had no policy until after resignation. Any breach by respondent of promise to investigate harassment or training procedures in SOP did not cause applicant’s resignation as applicant not aware of SOP until after resignation. Improbable that applicant received no instruction on how to deal with demands for refunds. No dismissal.;BREACH OF CONTRACT: Respondent’s breach of any contractual obligation to have health and safety policy did not cause either of the two incidents. No harm caused by any breach of respondent’s duty to conduct proper investigation and no practicable but effective steps open to respondent to minimise risk of further incident. No breach of contract.;PENALTY: Respondent could not rely on EA to make deductions as no acknowledged debt due to respondent. Respondent may have believed entitled to make deduction at time but wilfully retained money deducted unlawfully after applicant informed respondent of legal requirements and requested money be repaid. Amount deducted more than 15% of applicant’s weekly wages and unlawful deduction added to applicant’s sense of grievance on resignation. $1,000 penalty appropriate for breach of Wages Protection Act 1983. Applicant’s annual leave paid at less than minimum wage but underpayment unintentional and resulted from administrative error. Amount involved small and respondent remedied matter. No penalty for breach of Minimum Wage Act 1983. |
| Result | Application granted (penalty)(breach of Wages Protection Act 1983); Penalty ($1,000)(payable to applicant); Applications dismissed (unjustified dismissal)(breach of contract)(penalty)(breach of Minimum Wage Act 1983); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Consumer Guarantees Act 1993;ERA;ERA s135;ERA s136;Health and Safety in Employment Act 1992;Minimum Wage Act 1983;Wages Protection Act 1983;Wages Protection Act 1983 s4;Wages Protection Act 1983 s5;Wages Protection Act 1983 s13 |
| Cases Cited | Amaltal Fishing Co Ltd v Morunga [2002] 1 ERNZ 692;Attorney-General v Gilbert [2002] 1 ERNZ 31; [2002] 2 NZLR 342;Gilbert v Attorney-General in Respect of the Chief Executive of the Department of Corrections [2000] 1 ERNZ 332 |
| Number of Pages | 16 |
| PDF File Link: | 2012_NZERA_Christchurch_134.pdf [pdf 213 KB] |