| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 280 |
| Hearing date | 31 Jul 2012 - 15 Aug 2012 (2 days) |
| Determination date | 17 August 2012 |
| Member | A Fitzgibbon |
| Representation | C Brookers, M Thum ; A Hassan |
| Location | Auckland |
| Parties | Mohammed v Pro Auto Panel and Paint Ltd |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Authority found applicant employed by respondent – UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed by respondent – Found applicant summarily dismissed without reasons – Found respondent unable to rely on 90 day trial period as no written provision in employment agreement (“EA”) – Dismissal unjustified – REMEDIES – No contributory conduct – Respondent to pay applicant $1,800 reimbursement of lost wages - $4,000 compensation appropriate – ARREARS OF WAGES – Applicant sought arrears of wages – Respondent to pay applicant $2,700 arrears of wages – Interest payable – PENALTY – Applicant sought penalties for respondent’s breach of EA and failure to provide written EA – Found respondent breached EA by failing to pay applicant arrears of wages – $500 penalty appropriate for breach of EA – Found no jurisdiction to order penalty for failure to provide written EA unless action brought by Labour Inspector – No penalty for failure to provide written EA – COSTS – Less than one day investigation meeting – Applicant sought $4,000 contribution towards costs - Respondent to pay applicant $1,750 contribution towards costs – Mechanic |
| Abstract | Applicant employed by respondent as mechanic. Applicant claimed unjustifiably dismissed by respondent. Applicant sought arrears of wages and penalties for respondent’s breach of employment agreement (“EA”) and failure to provide written EA. Applicant sought $4,000 contribution towards costs. Respondent claimed not applicant’s employer. Applicant employed by company (“U”) and told business to be taken over by respondent. Applicant claimed owed two weeks wages by U and respondent agreed would pay outstanding wages. Respondent’s director (“H”) assumed management of business. Applicant claimed employed by respondent and paid wages by respondent. H claimed respondent not yet incorporated as company and H paid applicant wages as manager of U rather than director of respondent. Applicant claimed attended gathering to celebrate taking over of U by respondent. Respondent claimed gathering to mark H’s prosperity in business. Next month applicant approached H about unpaid wages. Applicant claimed H became angry and began abusing applicant. Applicant claimed H told applicant could fire applicant within 90 days under new law and sent applicant home. Applicant claimed dismissed. Applicant claimed not paid fully by respondent and still owed two weeks wages.;AUTHORITY FOUND –;PRACTICE AND PROCEDURE: Respondent took over U’s business including debts and obligations. Gathering was to mark takeover of business. Applicant employed by respondent.;UNJUSTIFIED DISMISSAL: Applicant dismissed summarily by respondent without reasons. Respondent unable to rely on 90 day trial period as no written provision in EA. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $1,800 reimbursement of lost wages. $4,000 compensation appropriate.;ARREARS OF WAGES: Respondent to pay applicant $2,700 arrears of wages. Interest payable.;PENALTY: Respondent breached EA by failing to pay applicant arrears of wages. $500 penalty appropriate for breach of EA. Respondent failed to provide applicant with written EA but no jurisdiction to order penalty unless action brought by Labour Inspector. No penalty for failure to provide written EA.;COSTS: Less than one day investigation meeting. Respondent to pay applicant $1,750 contribution towards costs. |
| Result | Applications granted (practice and procedure)(unjustified dismissal)(arrears of wages)(penalty)(breach of employment agreement); Reimbursement of lost wages ($1,800); Compensation for humiliation etc ($4,000); Arrears of wages ($2,700); Interest (5%); Penalty ($500)(payable to Crown); Application dismissed (penalty)(failure to provide written employment agreement); Costs in favour of applicant ($1,750); Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Practice & Procedure |
| Statutes | Companies Act 1993;ERA s65;ERA s65(4);ERA s67A;ERA s131(1);ERA s134;ERA Second Schedule cl15 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Auckland_280.pdf [pdf 231 KB] |