| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 135 |
| Hearing date | 2 Oct 2012 |
| Determination date | 31 October 2012 |
| Member | P R Stapp |
| Representation | G W Calver ; no appearance |
| Location | Napier |
| Parties | Watt v G & L Building and Maintenance Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent and sought contribution towards costs – Authority found applicant only told position had been made redundant after applicant requested reasons for dismissal – Found respondent did not provide details of respondent’s financial situation to support redundancy – Found no evidence to support respondent’s claim applicant agreed to use holidays while no work available – Found respondent’s failure to respond to applicant’s statement of problem obstructed Authority’s investigation – Found respondent failed to provide genuine reason for redundancy and applicant not given opportunity to comment on dismissal - Dismissal unjustified – REMEDIES - No contributory conduct - Respondent liable for remuneration under first employment agreement until fixed term expiry date - $8,000 compensation appropriate - Respondent to pay applicant $55,130 reimbursement of lost wages - ARREARS OF HOLIDAY PAY AND RECOVERY OF MONIES - Applicant sought arrears of holiday pay and recovery of monies – Found applicant entitled to holiday pay and as no information provided by respondent could assume respondent accepted claim – Found respondent to pay applicant $4,000 arrears of holiday pay – Found applicant entitled to be reimbursed for apprenticeship fees - Respondent to pay applicant $600 recovery of monies – COSTS – Applicant sought contribution towards costs - Less than one day investigation meeting - Respondent to pay applicant $2,000 contribution towards costs - Apprentice Builder |
| Abstract | Applicant employed as apprentice builder. Applicant claimed unjustifiably dismissed by respondent and sought arrears of holiday pay and reimbursement of apprenticeship fees. Applicant sought contribution towards costs. Respondent claimed applicant’s position made redundant. Applicant claimed signed multiple copies of parties’ employment agreement (“EA”) but respondent had all signed and complete copies. Applicant initially employed on fixed term while employed as apprentice (“first EA”) and later offered indefinite employment on reduced pay (“second EA”). Applicant did not agree to terms of second EA. First EA stated wages not payable during periods where respondent not able to offer applicant work. Applicant claimed employment ended when respondent director told applicant employment had ended due to “unforeseen event.” Respondent claimed applicant told no further work available and agreed to take holidays. Applicant claimed did not take any leave before employment ended. Applicant claimed after applicant told was no work available respondent gave applicant’s co-workers substantial pay increase, took on new employees and no consultation with applicant about redundancy. Payment of applicant’s wages ended immediately. No appearance for respondent.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent had no good reason for not appearing at investigation meeting and appropriate to proceed with matter. Parties’ first EA applied however was no fixed date for agreement to end as based on when applicant’s apprenticeship training concluded. Applicant dismissed when told by respondent had been “unforeseen event.” Applicant only told position had been made redundant after requested reasons for dismissal. Respondent did not provide details of respondent’s financial situation to support redundancy. No evidence to support respondent’s claim applicant agreed to use holidays while no work available. Respondent’s failure to respond to applicant’s statement of problem obstructed Authority’s investigation. Respondent failed to provide genuine reason for redundancy and applicant not given opportunity to comment on dismissal. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent liable for remuneration under first EA until EA expiry date. $8,000 compensation appropriate. Respondent to pay applicant $55,130 reimbursement of lost wages.;ARREARS OF HOLIDAY PAY AND RECOVERY OF MONIES: Applicant entitled to holiday pay and as no information provided by respondent could assume respondent accepted claim. Respondent to pay applicant $4,000 arrears of holiday pay. Applicant entitled to be reimbursed for apprenticeship fees. Respondent to pay applicant $600 recovery of monies.;COSTS: Less than one day investigation meeting. Respondent to pay applicant $2,000 contribution towards costs. |
| Result | Applications granted ; Compensation for humiliation etc ($8,000) ; Reimbursement of lost wages ($55,130.71) ; Arrears of holiday pay ($4,000) ; Recovery of monies ($600) ; Costs in favour of applicant ($2,000) ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | Employment Contracts Act 1991;ERA Second Schedule cl12 |
| Cases Cited | Williams v Attorney-General in respect of the Secretary for Justice [1999] 2 ERNZ 457 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Wellington_135.pdf [pdf 220 KB] |