| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 307 |
| Hearing date | 29 Aug 2012 |
| Determination date | 05 September 2012 |
| Member | A Dumbleton |
| Representation | T Oldfield ; M King |
| Parties | Fotu and Anor v Crest Commercial Cleaning Ltd |
| Other Parties | M Fotu |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Dismissal – Applicants claimed respondent failed to comply with Part 6A Employment Relations Act 2000 (“ERA”) and claimed unjustifiably dismissed by respondent – Authority found only condition of transfer of employment under s 69I ERA that employee had made election to transfer – Found nothing to make transfer of applicants’ employment unworkable – Respondent failed to comply with Part 6A ERA – Found applicants either employed by respondent or persons intending to work – Found applicants dismissed – Dismissals unjustified – REMEDIES – No contributory conduct – Respondent to pay first applicant $2,193 reimbursement of lost wages and second applicant $3,071 reimbursement of lost wages – Interest payable – $4,500 compensation appropriate for first applicant and $4,500 compensation appropriate for second applicant – COSTS – Length of investigation meeting not specified – Applicants sought contribution towards costs – Respondent to pay applicants $1,000 contribution towards costs – Costs and disbursements to be paid directly to applicants’ representative – Cleaners |
| Abstract | Applicants employed by respondent as cleaners. Applicants claimed respondent failed to comply with Part 6A Employment Relations Act 2000 (“ERA”) and claimed unjustifiably dismissed by respondent. Applicants sought contribution towards costs. Applicants employed by company (“PPCS”) at specified site. Contract for cleaning services at specified site awarded to respondent and applicants signed form opting to transfer employment to respondent. PPCS attempted to arrange meeting with applicants and respondent. Respondent requested PPCS provide applicants’ signed employment agreements (“EA”), signed election forms and copy of cleaning specifications at specified site. PPCS declined to provide information. Respondent claimed applicants’ transfer of employment incomplete or ineffective because of PPCS’s failure to supply required information. Respondent claimed if employed applicants without retaining copies of applicants’ EAs respondent in breach of s 64(1) ERA.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: No dispute change of cleaning contract brought about Part 6A ERA situation. Only condition of transfer of employment under s 69I ERA that employee had made election to transfer. Applicants elected to transfer. Not necessary to imply additional requirement into ERA that information of kind sought by respondent condition of effective transfer. Nothing to make transfer of applicants’ employment unworkable as respondent could have obtained required information by meeting applicants. Respondent only required to retain copies of individual EAs and applicants employed under collective EA. Respondent failed to comply with Part 6A ERA. Applicants either employed by respondent or persons intending to work. Applicants dismissed. Dismissals unjustified. REMEDIES: No contributory conduct. Respondent to pay first applicant $2,193 reimbursement of lost wages and second applicant $3,071 reimbursement of lost wages. Interest payable. $4,500 compensation appropriate for first applicant and $4,500 compensation appropriate for second applicant.;COSTS: Length of investigation meeting not specified. Respondent to pay applicants $1,000 contribution towards costs. Costs and disbursements to be paid directly to applicants’ representative. |
| Result | Applications granted; Reimbursement of lost wages ($2,193.75)(first applicant)($3,071.25)(second applicant); Interest (5%); Compensation for humiliation etc ($4,500)(first applicant)($4,500)(second applicant); Costs in favour of applicants ($1,000); Disbursements in favour of applicants ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4;ERA s64;ERA s64(1);ERA Part 6A;ERA s69I;ERA s69M;ERA s103A |
| Cases Cited | Doran v Crest Commercial Cleaning Ltd (2012) 9 NZELR 241 |
| Number of Pages | 8 |
| PDF File Link: | 2012_NZERA_Auckland_307.pdf [pdf 179 KB] |