| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 275 |
| Hearing date | 10 Oct 2011 |
| Determination date | 13 August 2012 |
| Member | K J Anderson |
| Representation | M Robson ; J Gandhi |
| Location | Auckland |
| Parties | Bhola v Preet Enterprised Ltd t/a Kess Hair & Beauty |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Authority found applicant dismissed – Found applicant told simply not to come to work next day – Dismissal unjustified – REMEDIES – 50 per cent contributory conduct – Respondent to pay applicant $1,240 reimbursement of lost wages - $2,000 compensation appropriate – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Respondent to pay applicant $2,115 arrears of wages and $2,666 arrears of holiday pay – Hairdresser and beautician |
| Abstract | Applicant employed by respondent as hairdresser and beautician. Applicant claimed unjustifiably dismissed by respondent. Applicant sought arrears of wages and holiday pay. Applicant given written warning in response to complaints. One month later respondent’s owner (“A”) claimed asked applicant to take early lunch that day as respondent busy after lunch but during afternoon applicant refused to serve customers and announced taking lunch. A claimed when told applicant refusal to serve customers without giving advance notice of break serious misconduct applicant told A to fire applicant. At end of day applicant claimed told by A to stay late to complete customer appointments. Applicant claimed unable to stay and told by A not to come to work next day if did not remain. Respondent claimed applicant refused to serve customers who had been waiting despite numerous requests and A had to apologise to customers. Applicant claimed returned to respondent next day and told by other employees not wanted by respondent. Other employees claimed applicant apologised for actions previous day and asked for A to write formal termination letter. Respondent sent applicant letter confirming termination of applicant’s employment and stating applicant’s actions amounted to breach of employment agreement (“EA”). Respondent claimed applicant resigned. Applicant claimed not paid fully for hours worked and not paid accrued annual leave. Respondent conceded owed applicant arrears of wages and holiday pay but parties disputed quantum.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent issued ultimatum that if applicant did not serve customers at end of day applicant should not come to work next day. If applicant had left employment voluntarily letter from respondent would not have been expressed as confirmation of termination of applicant’s employment and would not have referred to clause in EA allowing respondent to terminate applicant’s employment summarily. Respondent’s statement in reply referred to applicant being dismissed. Applicant dismissed. Respondent had few resources but could have suspended applicant or commenced disciplinary process next day. Instead applicant told simply not to come to work next day. Dismissal unjustified. REMEDIES: 50 per cent contributory conduct. Respondent to pay applicant $1,240 reimbursement of lost wages. $2,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant entitled to money claimed. Respondent to pay applicant $2,115 arrears of wages and $2,666 arrears of holiday pay. |
| Result | Applications granted; Contributory conduct (50%); Reimbursement of lost wages ($1,240); Compensation for humiliation etc ($2,000); Arrears of wages ($2,115.49); Arrears of holiday pay ($2,666.96); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Employment Relations Amendment Act 2010;ERA s103A;ERA s103A(3);ERA s124;ERA s128(2) |
| Number of Pages | 14 |
| PDF File Link: | 2012_NZERA_Auckland_275.pdf [pdf 251 KB] |