| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 434 |
| Hearing date | 25 Oct 2012 |
| Determination date | 04 December 2012 |
| Member | T MacKinnon |
| Representation | M Kadarimia ; S Park (in person) |
| Location | Auckland |
| Parties | Cha v A One Today Motors Ltd & Anor |
| Other Parties | Park |
| Summary | UNJUSTIFIED DISMISSAL – Abandonment – Applicant claimed unjustifiably dismissed by first respondent – Respondents claimed applicant abandoned employment – Authority found respondents approved applicant’s leave – Found respondents should have communicated requirement to return to work early to applicant directly – Found applicant on approved leave and did not abandon employment – Found applicant had no opportunity to comment on reasons for dismissal and no evidence respondents investigated allegations contained in dismissal letter – Dismissal unjustified – REMEDIES – No contributory conduct – First respondent to pay applicant $12,421 reimbursement of lost wages – $5,000 compensation appropriate – ARREARS OF WAGES AND HOLIDAY PAY – BARGAINING – Applicant sought arrears of wages and holiday pay – Found respondents did not force applicant to accept changed conditions to employment agreement – No arrears of wages – Found respondents acknowledged owed applicant four days wages for days applicant required to take annual leave – First respondent to pay applicant $764 arrears of holiday pay – Spray painter and panel beater |
| Abstract | Applicant employed by first respondent as spray painter and panel beater. Applicant claimed unjustifiably dismissed by first respondent and sought arrears of wages and holiday pay. Applicant claimed forced to sign new employment agreement (“EA”) reducing applicant’s hours and pay. Applicant claimed struggled to read EA in English, asked to sign EA within one day and sought difference between former pay and lower pay over nine months until dismissal. Second respondent claimed met with applicant three weeks before applicant signed new EA to explain needed to reduce hours and pay and told applicant could take EA away and ask any questions. Respondents acknowledged applicant requested six weeks leave and agreed applicant could take leave but claimed applicant did not specify exact dates until two days before leave started. Applicant claimed letter from second respondent regarding applicant’s leave entitlements during six weeks leave confirmed agreement for applicant to take leave between specified dates. Respondents claimed applicant’s paid leave expired ten days before applicant’s scheduled return and applicant should have returned to work. Respondents claimed applicant abandoned employment. Applicant dismissed. Respondents acknowledged did not tell applicant required to return to work ten days early but claimed attempted to contact applicant and asked applicant’s wife to pass on message. Applicant denied receiving message. Respondents claimed gave applicant numerous verbal warnings would be dismissed if did not work harder, applicant’s work performance unsatisfactory, applicant failed to follow repair process, told client would discount price without consulting respondents and reprimanded for using first respondent’s name to obtain parts for applicant’s personal use. Applicant denied respondents’ claims, provided explanations and denied received any warnings. Applicant sought payment for four days required to take annual leave by respondents at short notice and without consultation.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Letter from second respondent confirmed agreement for applicant to take leave between specified dates and respondents should have been clear if leave not approved. Respondents should have communicated requirement to return to work early to applicant directly rather than relying on applicant’s wife. Applicant on approved leave and did not abandon employment. Applicant had no opportunity to comment on reasons for dismissal and no evidence respondents investigated allegations contained in dismissal letter. Respondents’ claim reprimanded applicant for using first respondent’s name to purchase parts for personal use meant respondents considered reprimand appropriate at time and could not rely later on allegation as reason for dismissal. Dismissal unjustified. REMEDIES: No contributory conduct. First respondent to pay applicant $12,421 reimbursement of lost wages. $5,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY – BARGAINING: Respondents did not force applicant to accept changed conditions and applicant protested about new EA only after dismissal. No arrears of wages. Respondents acknowledged owed applicant four days wages. First respondent to pay applicant $764 arrears of holiday pay. |
| Result | Applications granted (unjustified dismissal)(arrears of holiday pay) ; Reimbursement of lost wages ($12,421.50) ; Compensation for humiliation etc ($5,000) ; Arrears of holiday pay ($764.40) ; Application dismissed (arrears of wages – bargaining) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s63A(2);ERA s103(1)(a);ERA s103A;ERA s103A(3);ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s103A(5);ERA s124;ERA s128(2);ERA s128(3) |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) (2011) 9 NZELR 40;Goodfellow v Building Connexion Ltd t/a ITM Building Centre [2010] NZEmpC 82 |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Auckland_434.pdf [pdf 257 KB] |