| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 251 |
| Hearing date | 14 Nov 2012 |
| Determination date | 15 November 2012 |
| Member | C Hickey |
| Representation | J Pullar ; No appearance |
| Location | Christchurch |
| Parties | Wildbore v Jerard |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Authority found applicant dismissed when respondent told applicant was letting applicant go and not to come back following day – Found no doubt applicant’s dismissal unjustified as respondent failed to meet any of procedural tests set out in s103A(3) Employment Relations Act 2000 - Dismissal unjustified – REMEDIES - No contributory conduct - $8,000 compensation appropriate - Respondent to pay applicant $2,220 reimbursement of lost wages – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Authority found applicant not paid for last six days of employment and not paid any holiday pay – Authority satisfied respondent deducted amounts from applicant’s wages that were to be paid towards applicant’s student loan – Found no KiwiSaver employee contributions paid on applicant’s behalf by respondent and respondent did not make any employer contributions to applicant’s KiwiSaver account during employment - Respondent to pay applicant $429 arrears of wages and $1,180 arrears of holiday pay - Respondent to pay applicant sums for KiwiSaver employee contributions, KiwiSaver employer contributions and student loan repayments withheld from applicant’s wages, quantum to be determined |
| Abstract | Applicant claimed unjustifiably dismissed by respondent. No appearance for respondent. Applicant did not receive written employment agreement or pay slips. Applicant completed cookery course and was told by respondent expected applicant to do more food preparation in kitchen rather than front of house duties. Applicant requested pay rise due to increased workload and respondent advised applicant would consider it. Respondent subsequently instructed applicant to undertake additional food tasks. Respondent raised issues about applicant’s work rate but applicant claimed work rate due to being asked to assist with front of house. Applicant again raised issue of pay rate and asked why respondent had not hired another staff member as had previously told applicant. Applicant claimed respondent told applicant “there’s the door” if did not like position. Applicant claimed told at end of day respondent was “letting me go,” not to return to work and to collect holiday pay. Applicant claimed told by respondent dismissal was due to way applicant spoke to respondent and amounted to serious misconduct. Applicant did not return to workplace and did not receive holiday pay. Applicant sought arrears of wages and holiday pay.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Authority satisfied respondent received notice of investigation meeting and appropriate to continue with investigation meeting. Authority satisfied respondent told applicant “there’s the door” when applicant raised pay and workload issues. Applicant dismissed when respondent told applicant was letting applicant go and not to come back following day. No doubt applicant’s dismissed unjustified as respondent failed to meet any of procedural tests set out in s103A(3) Employment Relations Act 2000. Applicant had no prior warning that respondent would raise concerns with applicant and no opportunity to seek representation. Respondent did not act as fair and reasonable employer in circumstances. Dismissal unjustified. REMEDIES: No contributory conduct. $8,000 compensation appropriate. Respondent to pay applicant $2,220 reimbursement of lost wages.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant not paid for last six days of employment. Applicant had not been paid any holiday pay during employment. Satisfied respondent deducted amounts from applicant’s wages that were to be paid towards applicant’s student loan. No KiwiSaver employee contributions paid on applicant’s behalf by respondent and respondent did not make any employer contributions to applicant’s KiwiSaver account during employment. Respondent to pay applicant $429 arrears of wages and $1,180 arrears of holiday pay. Respondent to pay applicant sums for KiwiSaver employee contributions, KiwiSaver employer contributions and student loan repayments withheld from applicant’s wages, quantum to be determined. |
| Result | Applications granted ; Compensation for humiliation etc ($8,000) ; Reimbursement of lost wages ($2,220.22) ; Arrears of wages ($429.72) ; Arrears of wages (KiwiSaver employee contributions, KiwiSaver employer contributions and student loan repayments withheld from applicant’s wages)(parties to determine quantum) ; Arrears of holiday pay ($1,180.26) ; Costs reserved ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s103A(5);ERA s124;ERA s128(2);ERA s173(2) |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015;Wellington, Taranaki and Marlborough Clerical Etc IUOW v Greenwich (T/A Greenwich and Associates Employment Agency and Complete Fitness Centre) (1983) ERNZ Sel Cas 95 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Christchurch_251.pdf [pdf 181 KB] |