| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 240 |
| Hearing date | 1 Nov 2012 |
| Determination date | 02 November 2012 |
| Member | M B Loftus |
| Representation | P Tucker ; G Baker |
| Location | Christchurch |
| Parties | Day v Agmech Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Dismissal - Applicant claimed unjustifiably dismissed by respondent - Authority found applicant not casual employee – Found applicant dismissed by respondent – Found respondent failed to raise concerns about applicant’s performance with applicant - Found respondent did not follow process before applicant dismissed - Dismissal unjustified – REMEDIES - No contributory conduct - $5,000 compensation appropriate - Respondent to pay applicant $3,020 reimbursement of lost wages – ARREARS OF WAGES – Applicant sought arrears of wages – Found respondent could not rely on applicant’s performance as ground for not increasing applicant’s wages as performance concerns not formally raised with applicant – Found although respondent unable to offer applicant work over three day period, respondent’s obligation to pay applicant’s wage continued - Respondent to pay applicant $862 arrears of wages - Fitter Turner and Fitter Welder |
| Abstract | Applicant employed as fitter turner and fitter welder. Applicant claimed unjustifiably dismissed by respondent and sought arrears of wages. Respondent denied applicant had been dismissed. Respondent director (“B”) claimed at pre-employment interview applicant told all employees initially engaged as casual employee and not eligible for “full time employment benefits.” B claimed after this period completed applicant continued as casual employee for another three month trial period but entitled to “full time employment benefits” and if trial period successful applicant then became fulltime. Respondent claimed issues with applicant’s performance but agreed did not formally discuss concerns with applicant. After Christchurch earthquake no power at respondent’s premises (“three day period”). Applicant claimed did not receive agreed wage increase and should have been paid for three day period as was available to work. Respondent claimed only some employees worked during three day period and those who did not work were not paid. Applicant claimed respondent told applicant following week had been dismissed. Respondent claimed offered applicant opportunity to leave as believed applicant did not want to work for respondent and applicant accepted respondent's offer.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Parties did not confirm in writing applicant casual employee and parties agreed intended to enter into permanent ongoing relationship. Applicant not casual employee. Applicant’s evidence of how relationship ended preferable and applicant dismissed by respondent. Respondent failed to raise concerns about applicant’s performance with applicant. Although respondent small employer, respondent did not follow process before applicant dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. $5,000 compensation appropriate. Respondent to pay applicant $3,020 reimbursement of lost wages.;ARREARS OF WAGES: Parties’ employment agreement included provision for increase in applicant’s wages. Respondent could not rely on applicant’s performance as ground for not increasing applicant’s wages as performance concerns not formally raised with applicant. Although respondent unable to offer applicant work over three day period, respondent’s obligation to pay applicant’s wage continued. Respondent to pay applicant $862 arrears of wages. |
| Result | Applications granted ; Compensation for humiliation etc ($5,000) ; Reimbursement of lost wages ($3,020) ; Arrears of wages ($862.50) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s128(2) |
| Cases Cited | Muldoon v Nelson Marlborough District Health Board (2011) 9 NZELR 159 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Christchurch_240.pdf [pdf 167 KB] |