| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 240 |
| Hearing date | 14 May 2012 |
| Determination date | 16 July 2012 |
| Member | R A Monaghan |
| Representation | P Lal ; K Mudliar |
| Parties | Lal v Mudliar Motors Ltd |
| Summary | JURISDICTION – Whether applicant employee – Authority found respondent should not have signed employment documents if did not reflect respondent’s intentions – Found applicant employee – UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed by respondent – Found applicant dismissed – Found no consultation about termination of applicant’s employment – Dismissal unjustified – REMEDIES – No contributory conduct – Respondent to pay applicant $1,512 reimbursement of lost wages – Interest payable – ARREARS OF WAGES AND HOLIDAY PAY – Respondent to pay applicant $8,260 arrears of wages and $1,026 arrears of holiday pay – Interest payable – COSTS – Less than one day investigation meeting – Applicant sought indemnity costs – Respondent to pay applicant $750 contribution towards costs – Panelbeater |
| Abstract | Applicant engaged by respondent as panelbeater. Applicant claimed unjustifiably dismissed by respondent. Applicant sought arrears of wages and holiday pay. Applicant sought indemnity costs. Respondent claimed did not employ applicant. Applicant claimed told by respondent that respondent had vacancy and respondent offered to provide applicant with offer of employment to allow applicant to obtain variation to work permit. Respondent claimed told applicant no vacancy. Applicant’s relative (“L”) claimed asked by respondent to advertise vacancy but respondent claimed no prior knowledge of advertisement. Respondent signed documents prepared by L, including employment agreement and offer of employment. Respondent claimed did not ask for documents to be prepared and told L when signing documents no work available for applicant. Applicant issued new work permit and claimed respondent agreed applicant could start work. Respondent claimed applicant allowed to use workshop for applicant’s own work. Six months later applicant claimed dismissed by respondent. Respondent claimed employment relationship terminated by applicant and applicant already working for new employer. Applicant claimed not paid fully for time worked.;AUTHORITY FOUND –;JURISDICTION: Respondent should not have signed employment documents if did not reflect respondent’s intentions. Applicant employee.;UNJUSTIFIED DISMISSAL: Applicant had commenced discussions with new employer prior to alleged dismissal but probable that applicant continued to report for work at respondent. Applicant dismissed. No consultation about termination of applicant’s employment. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $1,512 reimbursement of lost wages. Interest payable.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant’s claims accepted as respondent failed to keep wage and time records and failed to prove applicant’s claims incorrect. Respondent to pay applicant $8,260 arrears of wages and $1,026 arrears of holiday pay. Interest payable.;COSTS: Less than one day investigation meeting. Respondent to pay applicant $750 contribution towards costs. |
| Result | Applications granted; Reimbursement of lost wages ($1,512); Arrears of wages (8,260.74); Arrears of holiday pay ($1,026.25); Interest (5%); Costs in favour of applicant ($750); Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s132;ERA s132(2) |
| Cases Cited | PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Auckland_240.pdf [pdf 180 KB] |