| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 266 |
| Hearing date | 7 Feb 2012 |
| Determination date | 03 August 2012 |
| Member | K J Anderson |
| Representation | M Nutsford ; W Reid |
| Location | Tauranga |
| Parties | Ross v R & B Transport Services Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – Authority found respondent venting frustrations at applicant on fairly regular basis inconsiderate but not dismissive or repudiatory conduct such that applicant constructively dismissed – No dismissal – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Respondent to pay applicant $175 arrears of wages and $242 arrears of holiday pay – RECOVERY OF MONIES – Applicant sought recovery of cost of cellphone calls made on respondent’s behalf – Respondent to pay applicant $98 recovery of monies – PENALTY – Applicant sought penalty for respondent’s failure to provide employment agreement (“EA”) – Found employment relationship short, no evidence of discussion between parties about absence of EA and no obvious disadvantage to applicant – No penalty – Driver |
| Abstract | Applicant employed by respondent as driver. Applicant claimed unjustifiably dismissed by respondent. Applicant sought arrears of wages and holiday pay and recovery of cost of cellphone calls made on respondent’s behalf. Applicant sought penalty for respondent’s failure to provide employment agreement (“EA”). Problems arose over applicant’s performance. While driving applicant received call from respondent’s owner (“O”) demanding to know why applicant had filled out cheque for repairs to van without consulting O. Applicant claimed O abusive and applicant hung up. O apologised to applicant. Applicant claimed shouted at by O in subsequent phone conversation over further performance issue. Respondent prepared warning letter to set out performance concerns and asked applicant to collect letter so that parties could have discussion. Parties did not meet and O became frustrated at inability to address applicant’s performance issues. O called applicant to demand explanation about new incident. Respondent claimed applicant indicated would resign by bringing van to O’s house. Applicant claimed O aggressive and wanted applicant to bring van to O’s house. Respondent claimed when applicant bought van to O’s house O asked applicant to come inside and talk about issues but applicant walked away. Applicant claimed didn’t see O when leaving van at O’s house. Respondent considered applicant resigned. Applicant claimed O’s habit of angry phone calls meant applicant constructively dismissed. Applicant claimed not paid for three days.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: O probably invited applicant to discuss issues arising and initiative for applicant’s departure came from applicant. O venting frustrations at applicant on fairly regular basis inconsiderate but not dismissive or repudiatory conduct such that applicant constructively dismissed. Applicant’s resignation voluntary. No dismissal.;ARREARS OF WAGES AND HOLIDAY PAY: Probable that applicant owed wages claimed and respondent conceded applicant owed holiday pay claimed. Respondent to pay applicant $175 arrears of wages and $242 arrears of holiday pay.;RECOVERY OF MONIES: Respondent to pay applicant $98 recovery of monies.;PENALTY: Employment relationship short, no evidence of discussion between parties about absence of EA and no obvious disadvantage to applicant. No penalty. |
| Result | Applications granted (arrears of wages and holiday pay)(recovery of monies); Arrears of wages ($175); Arrears of holiday pay ($242.36); Recovery of monies ($98.79); Applications dismissed (unjustified dismissal)(penalty); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s65 |
| Cases Cited | Wellington, Taranaki and Marlborough Clerical etc IUOW v Greenwich (t/a Greenwich and Associates Employment Agency and Complete Fitness Centre) (1983) ERNZ Sel Cas 95 |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Auckland_266.pdf [pdf 198 KB] |