| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 254 |
| Hearing date | 16 Jul 2012 |
| Determination date | 26 July 2012 |
| Member | R Larmer |
| Representation | D Vinnicombe ; J Mosa |
| Location | Auckland |
| Parties | Longstaff v Profinish Panel and Paint Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – ARREARS OF WAGES AND HOLIDAY PAY - Applicant claimed unjustifiably dismissed and sought arrears of wages and holiday pay - Authority found applicant did not resign, applicant’s employment ended when M sent applicant away - Found respondent did not comply with good faith obligations and applicant summarily dismissed without any investigation or procedural steps taken by respondent - Dismissal unjustified - REMEDIES - 100 per cent contributory conduct - Compensation not appropriate - ARREARS OF WAGES AND HOLIDAY PAY - Applicant not paid for nine days and respondent not entitled to withhold applicant’s holiday pay, regardless of quality of applicant’s work - Respondent to pay applicant $700 arrears of wages and $56 arrears of holiday pay - Panel beater |
| Abstract | Applicant employed as panel beater. Applicant claimed unjustifiably dismissed by respondent. Parties disputed date applicant commenced employment and whether trainee. Respondent claimed dismissal justified. Respondent acknowledged arrears of wages outstanding but claimed entitled to deduct two weeks’ wages as applicant did not give notice and applicant not entitled to holiday pay as cost incurred by respondent to fix applicant’s mistakes. Parties’ employment agreement stated respondent entitled to deduct wages if applicant failed to give two weeks’ notice. Respondent director (“M”) claimed applicant made several costly mistakes at work and told applicant to go home while respondent decided what to do about recent mistake. Applicant returned to workplace to ascertain if had been dismissed. M claimed applicant yelled and swore when returned to workplace, felt threatened and applicant abusive and threatening next day. M told applicant “you have fired yourself.” Applicant claimed M tried to hit applicant with equipment when left premises. Parties later arrested for fighting in public place (second incident").;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent told applicant to go home as frustrated required to fix applicant’s mistakes. Applicant damaged M’s vehicle and instigated and aggressor in second incident. Applicant did not resign, applicant’s employment ended when M sent applicant away. Respondent did not comply with good faith obligations and applicant summarily dismissed without any investigation or procedural steps taken by respondent. Dismissal unjustified. REMEDIES: 100 per cent contributory conduct. Compensation not appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant employed for nine days. Respondent not entitled to withhold applicant’s holiday pay, regardless of quality of applicant’s work. Respondent to pay applicant $700 arrears of wages and $56 arrears of holiday pay." |
| Result | Applications granted (arrears of wages and holiday pay and unjustified dismissal) ; Arrears of wages ($700) ; Arrears of holiday pay ($56) ; Contributory conduct (100%) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s103A;ERA s103A(3);ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d) |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015 |
| Number of Pages | 8 |
| PDF File Link: | 2012_NZERA_Auckland_254.pdf [pdf 161 KB] |