| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 179 |
| Hearing date | 7 Jul 2012 |
| Determination date | 23 August 2012 |
| Member | M B Loftus |
| Representation | J Baird ; L Dickson |
| Location | Queenstown |
| Parties | Hillary v NZ Shopping.com Company Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Dismissal - Applicant claimed unjustifiably dismissed by respondent – Authority found applicant did not resign – Found alternatively, if applicant resigned during incident respondent expected to allow “cooling off” period before concluding applicant had resigned – Found applicant dismissed – Found absolutely no evidence of any investigation by respondent into matter - Dismissal unjustified – REMEDIES - No contributory conduct - $5,107 reimbursement of lost wages - $8,000 compensation appropriate - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday including unauthorised deductions made by respondent - Respondent to pay applicant $3,114 arrears of wages and holiday pay including unauthorised deductions from applicant’s wages made by respondent |
| Abstract | Applicant claimed unjustifiably dismissed by respondent and sought arrears of wages and holiday pay including unauthorised deductions made by respondent. Respondent denied applicant dismissed. Respondent received attachment notice requiring respondent to deduct money from applicant’s wages and forward directly to Ministry of Justice (“Ministry”) for unpaid fines. Applicant claimed arranged for respondent to make deductions. Respondent owners disputed whether applicant agreed that deductions made. Applicant claimed workplace environment deteriorated after applicant went on holiday with colleague (“D”). Applicant advised by Ministry no payments towards fines received and applicant would be penalised. Applicant not paid for two days’ sick leave. Applicant claimed respondent owner (“J”) accused applicant of “faking” illness and dispute arose about applicant’s pay and unpaid fines. Applicant told J applicant thought J was liar and thief. Applicant claimed left workplace to get documents to support had been ill and on return J told applicant to take rest of day off. J claimed applicant resigned, stormed out and screamed obscenities at J (“incident”). Respondent denied applicant told when returned to work next day told to leave premises otherwise Police would be called. Respondent claimed applicant called D and said had quit. Applicant sent summary of wages showing deductions from wages forwarded to Ministry and deduction for payment to D. Applicant denied authorised particular deductions. Applicant claimed some of deductions allegedly made by respondent not received by Ministry.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent’s evidence undermined by Ministry’s evidence and J’s evidence raised credibility issues. Applicant did not resign. Alternatively, if applicant resigned during incident respondent expected to allow “cooling off” period before concluding applicant had resigned. Applicant dismissed. Absolutely no evidence of any investigation by respondent into matter or respondent giving applicant opportunity to comment. Dismissal unjustified. REMEDIES: No contributory conduct. $5,107 reimbursement of lost wages. $8,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Respondent’s evidence that applicant’s wage records inaccurate as prepared hurriedly inadequate. Respondent ignored multiple requests to supply accurate wage and time records. No evidence of respondent’s claim applicant received some payments in cash. Respondent to pay applicant $3,114 arrears of wages and holiday pay including unauthorised deductions from applicant’s wages made by respondent. |
| Result | Applications granted ; Reimbursement of lost wages ($5,107.12) ; Compensation for humiliation etc ($8,000) ; Arrears of wages and holiday pay ($3,114.30) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s124;ERA s128;ERA s128(2);ERA s132;Interpretation Act 1999 s4;Interpretation Act 1999 s7 |
| Cases Cited | Kostic v Dodd unreported, Couch J, 11 July 2007, CC14/07 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Christchurch_179.pdf [pdf 171 KB] |