| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 330 |
| Hearing date | 13 Sep 2012 |
| Determination date | 24 September 2012 |
| Member | J Crichton |
| Representation | M Moncur ; Y Yue Wang |
| Location | Auckland |
| Parties | Qin v Trust Worthy Automotive Ltd |
| Summary | JURISDICTION – Whether applicant employee or volunteer – Authority found applicant person intending to work and respondent advertised engagement as employment - Found applicant employee - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably dismissed and unjustifiably disadvantaged by respondent’s actions – Found respondent would not have engaged applicant if applicant had been truthful about ability - Dismissal justified - Found applicant entitled to payment for period of employment – Found applicant unjustifiably disadvantaged by respondent’s failure to pay applicant wages – REMEDIES - 100 per cent contributory conduct - PENALTY – Applicant sought penalty for respondent’s failure to pay wages owing, keep wage and time records or provide applicant with written employment agreement - Found respondent acted on mistaken belief it could legally recruit workers on voluntary basis for first week of employment - No penalty - Assistant Mechanic |
| Abstract | Applicant employed as assistant mechanic. Applicant claimed unjustifiably dismissed, unjustifiably disadvantaged by respondent’s actions and sought penalty against respondent. Applicant recently arrived in New Zealand and saw advertisement for position at respondent. Respondent director (“X”) interviewed applicant. X claimed applicant misrepresented skills at interview and respondent would not have employed applicant if applicant had been truthful. Applicant denied told respondent could drive or had experience repairing gearboxes. X claimed applicant could not drive, did not have even basic knowledge of workings of motor vehicles and unwilling to learn. X claimed engaged all staff on voluntary basis for initial week before offering employment. Applicant claimed only told working on voluntary basis on second day of engagement. Parties disputed whether respondent aware applicant only in New Zealand on working holiday visa. Respondent told applicant on second day did not think relationship would be successful but X agreed applicant had extra day before relationship terminated.;AUTHORITY FOUND –;JURISDICTION: Applicant person intending to work and respondent advertised engagement as employment. Noted respondent’s hiring practice did not comply with s67A Employment Relations Act 2000 requirements. Applicant employee.;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant misrepresented skills at initial interview with respondent and applicant had neither driving skills nor mechanical ability. Applicant did not disclose only had working holiday visa until engagement commenced. Respondent would not have engaged applicant if applicant had been truthful about ability. Dismissal justified. Applicant entitled to payment for period of employment. Applicant unjustifiably disadvantaged by respondent’s failure to pay applicant wages. REMEDIES: 100 per cent contributory conduct.;PENALTY: Authority satisfied respondent acted on mistaken belief could legally recruit workers on voluntary basis for first week of employment. No penalty. |
| Result | Application granted (unjustified disadvantage) ; Contributory conduct (100%) ; Applications dismissed (unjustified dismissal and penalty) ; Costs to lie where they fall |
| Main Category | Personal Grievance |
| Statutes | Contractual Mistakes Act 1977;Contractual Remedies Act 1979;ERA s6(1)(c);ERA s67A;ERA s124;ERA s162 |
| Cases Cited | Skywards Catering Ltd (t/a Wings Bar & Restaurant) v Apthorp-Hall [1995] 2 ERNZ 218 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Auckland_330.pdf [pdf 166 KB] |