| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 242 |
| Hearing date | 14 Mar 2012 - 1 May 2012 (4 days) |
| Determination date | 06 November 2012 |
| Member | H Doyle |
| Representation | K Coulston; P Brown |
| Location | Christchurch |
| Parties | Mokomoko & Anor v La Famia Foundation NZ & Anor |
| Other Parties | Harpur ; La Famia Number 2 Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed constructively dismissed or alternatively unjustifiably dismissed during resignation notice period – Authority found breaches by second respondent’s managing trustee (“W”) not serious enough that reasonably foreseeable that applicants would not have been prepared to work with another manager – Found no constructive dismissal – Found applicants dismissed by W during resignation notice period – Found applicants not given opportunity to respond to allegations of serious misconduct – Found applicants’ dismissal procedurally unfair – Found fair and reasonable employer would have had concerns about first applicant’s conduct but respondents ought to have conducted full investigation - Dismissal unjustified – REMEDIES - Contributory conduct by first applicant - Respondent to pay applicant $961 reimbursement of lost wages – Found first applicant would have been justifiably dismissed if W aware of unauthorised purchase of television – Found compensation for first applicant not appropriate due to conduct after dismissal – Found reinstatement of first applicant not practicable - Respondents to pay second applicant $769 reimbursement of lost wages – Found second applicant would have been justifiably dismissed if W aware of unauthorised purchase of television – Found compensation for second applicant not appropriate due to conduct after dismissal - ARREARS OF HOLIDAY PAY - COUNTERCLAIM – RECOVERY OF MONIES – Applicants sought arrears of holiday pay - Respondents counterclaimed for recovery of monies relating to alleged overpayment of applicants’ wages and multiple unauthorised payments made by applicants - W claimed applicants not entitled to holiday pay based on applicants’ dishonesty - Found applicants had statutory entitlement to holiday pay - Respondents to pay first applicant $9,615 arrears of holiday pay - Interest payable - Respondents to pay second applicant 3,487 arrears of holiday pay - Interest payable – Found on balance of probabilities W did not authorise applicants’ purchase of one item on respondents’ account - Found insufficient evidence to support respondents’ claim had been further unauthorised purchases made or theft of money from workplace by applicants - Applicants to pay second respondent $2,200 recovery of monies for unauthorised purchase of television – PENALTY – Applicants sought penalty against W personally for deliberately withholding applicants’ holiday pay – Found in all circumstances, including irregularities in wage and time records, penalty not appropriate - House Manager and Bar Manager |
| Abstract | First applicant (“M”) employed as house manager by first respondent (“LFF”) and second applicant (“H”) husband of M and employed as bar manager by second respondent (“La Famia”). Applicant claimed unjustifiably dismissed by respondents. Applicants claimed had been constructively dismissed when applicants resigned and later unjustifiably dismissed during agreed notice period after resignation. Applicants sought arrears of holiday pay and penalty against La Famia’s managing trustee (“W”) personally for deliberately withholding applicants’ holiday pay. M sought reinstatement. Respondents claimed applicants justifiably dismissed for serious misconduct. M claimed resigned after told at meeting with W applicants would be demoted immediately. H claimed told by M would be demoted and also decided to resign. W claimed arranged to meeting with M as serious financial issues with function centre (“WMFC”) managed by trust where applicant employed. W claimed wanted to tell M respondents had appointed new employee and applicants no longer required to carry out kitchen oversight applicants had previously raised with W as onerous and would be more managerial oversight from W. W claimed ‘taken aback’ by M’s reaction and became angry when M refused to accept changes. Applicants raised personal grievance claiming had been constructively dismissed. W claimed applicants participated in public campaign to attack respondents, respondents’ directors and new manager (“S”) and applicants’ actions amounted to serious misconduct. W told applicants by letter dismissed immediately and resignation notice period terminated. Respondents counterclaimed for recovery of monies related to alleged overpayment of applicants’ wages and multiple unauthorised payments made by applicants. W claimed applicants not entitled to holiday pay based on applicants’ dishonesty. W claimed after applicants dismissed discovered further misconduct by applicants including applicants making personal purchases with respondents’ money without authorisation and theft of property and money from workplace. Applicants claimed W consented to applicants’ purchase of new television in lieu of bonus payment.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant resigned as believed roles would be reduced and applicants concerned by W’s conduct at meeting. W increasing oversight at WMFC due to financial difficulties not breach of contract with applicants. W entitled to make new managerial appointment but required to consult with applicants if applicants’ roles impacted. No change to M’s hours or salary and W did not propose significantly different role. H would continue to be bar manager as stated in H’s job description. Further communication between parties required as to effect of changes on applicants’ roles. Applicants’ resignation premature in circumstances. Although procedural breaches by W not serious enough that reasonably foreseeable that applicants would not have been prepared to work with another manager. No constructive dismissal. Applicants dismissed when W sent letter. Applicants not given opportunity to respond to allegations of serious misconduct. Applicants’ dismissal procedurally unfair and W’s actions not those of fair and reasonable employer. M’s email to client unprofessional and treatment of co-workers unnecessarily rude. Fair and reasonable employer would have had concerns about M’s conduct but respondents ought to have conducted full investigation. Dismissal unjustified. REMEDIES: Contributory conduct by M but not H. Respondent to pay M $961 reimbursement of lost wages. M would have been justifiably dismissed if W aware of unauthorised purchase of television. Compensation for M not appropriate. Reinstatement of M not practicable. Respondent to pay H $769 reimbursement of lost wages. H would have been justifiably dismissed if W aware of unauthorised purchase of television. Compensation for H not appropriate.;ARREARS OF HOLIDAY PAY: Applicants had statutory entitlement to holiday pay and no ability to restrict or exclude applicants’ entitlements under Holidays Act 2003. Double entries made in respondents’ pay system and appropriate that applicants’ holiday pay entitlement adjusted accordingly. Respondents’ records of public holidays worked by applicants and sick leave taken by M also inaccurate. Respondents to pay M $9,615 arrears of holiday pay. Interest payable. Only speculative evidence H overpaid during employment. Respondents to pay H $3,487 arrears of holiday pay. Interest payable.;PENALTY: In all circumstances, including irregularities in wage and time records, penalty not appropriate.;COUNTERCLAIM – RECOVERY OF MONIES: Authority noted that possible criminal charges laid against applicants relating to respondents’ counterclaim. Parties wished to proceed with matter. On balance of probabilities W did not authorise applicants’ purchase of new television on respondents’ account. Appropriate to take into account in determining personal grievance remedies. Insufficient evidence to conclude whether was money stolen from workplace and respondents’ account used to purchase other personal items for applicants. Not evidence of loss relating to applicants’ purchase of furniture and freezer on W’s behalf. Not sufficient evidence that applicants overpaid or that money stolen from workplace. Applicants to pay La Famia $2,200 recovery of monies for unauthorised purchase of television. |
| Result | Applications granted (unjustified dismissal, arrears of holiday pay and counterclaim for recovery of monies) ; Reimbursement of lost wages ($961.54)(first applicant) ; Reimbursement of lost wages ($769.23)(second applicant) ; Arrears of holiday pay ($9,615)(first applicant) ; Arrears of holiday pay ($3,487.77)(second applicant) ; Interest (5%) ; Counterclaim – recovery of monies ($2,200) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A;ERA s133;ERA s134;ERA Second Schedule cl11;Judicature Act 1908 s87(3);Summary Proceedings Act 1957 s199(3)(a) |
| Cases Cited | Ark Aviation Ltd v Newton [2002] ERNZ 133 ; 2 NZLR 145;Auckland Shop Employees IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;BBX Financial Solutions PTY Limited and Trade Management (2010) PTY Ltd (in Liquidation v Wayne Andrew Wallace [2011] NZCA 667;Carlton and United Breweries (New Zealand) Pty Ltd v Bourke [1994] 2 ERNZ 1;New Zealand Performance & Entertainment Workers’ Union v 93FM Independent Broadcasting Co Ltd [1991] 1 ERNZ 774;Salt v Fell [2008] ERNZ 155 |
| Number of Pages | 27 |
| PDF File Link: | 2012_NZERA_Christchurch_242.pdf [pdf 389 KB] |