| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 263 |
| Hearing date | 27 Nov 2012 |
| Determination date | 30 November 2012 |
| Member | D Appleton |
| Representation | J Copeland ; M Thomas |
| Location | Invercargill |
| Parties | Peterson v Three Ten Dairies Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy - Applicant claimed unjustifiably dismissed by respondent – Authority found respondent did not fully and properly consult with applicant about possibility could be dismissed if did not agree to reduced hours – Found respondent genuinely needed to reduce applicant’s hours but not primary reason for terminating employment – Found fair and reasonable employer would not have dismissed applicant in circumstances - Dismissal unjustified – REMEDIES - No contributory conduct - Reimbursement of lost wages not appropriate in light of applicant’s injury - $5,000 compensation appropriate - GOOD FAITH – PENALTY – Applicant sought penalty for respondent’s alleged breach of good faith obligations – Found respondent’s actions not those of fair and reasonable employer but respondent did not act in bad faith - No penalty – COUNTERCLAIM – RECOVERY OF MONIES - Respondent counterclaimed for recovery of monies - Found respondent paid applicant $3,500 to secure applicant’s loyalty and commitment, not as personal loan, and applicant fulfilled pre-employment agreement by subsequently commencing employment - Application dismissed - Farm Worker |
| Abstract | Applicant employed as farm worker. Applicant claimed unjustifiably dismissed by respondent and sought penalty for respondent’s alleged breach of good faith obligations. Respondent claimed redundancy genuine. Respondent claimed applicant failed to repay personal loan from respondent and counterclaimed for $3,500 recovery of monies. Respondent offered applicant fulltime employment but subsequently discovered could not employ applicant until two months later. Respondent offered applicant $3,500 until able to employ applicant as applicant struggling financially. Parties disputed whether $3,500 payment to applicant was loan applicant required to pay back. Applicant commenced working for respondent fulltime. Applicant injured back at workplace and doctor instructed applicant only to perform light duties at work. Applicant claimed still able to carry out normal duties. Applicant claimed when told respondent considering looking for alternative employment respondent owner (“G”) became hostile and repeatedly asked applicant when would be leaving. G claimed available work at farm reduced and attempted to negotiate solution that worked for applicant, where applicant had enough work to support themselves financially whilst reducing applicant’s hours, but applicant refused to reduce hours. Applicant claimed plenty of work available and G did not discuss reducing applicant’s hours. Applicant told respondent had seen doctor and unable to work for two weeks. Applicant claimed G demanded that applicant provide date was leaving and when told G could not provide date was told “well I can do it from this end.” Respondent gave applicant letter following day stating from specified date respondent no longer had fulltime position available. Respondent employed family member shortly after applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent did not fully and properly consult with applicant about possibility could be dismissed if did not agree to reduced hours. Respondent did not give applicant opportunity to have representative or advise applicant of what hours would be offered to family member if applicant did not accept reduced hours. Respondent genuinely needed to reduce applicant’s hours but not primary reason for terminating employment. Dismissal primarily due to respondent’s uncertainty about when applicant would end employment and not because applicant’s position became superfluous. Fair and reasonable employer would not have dismissed applicant in circumstances. Dismissal unjustified. REMEDIES: No contributory conduct. Reimbursement of lost wages not appropriate in light of applicant’s injury. $5,000 compensation appropriate.;GOOD FAITH – PENALTY: Respondent’s actions not those of fair and reasonable employer but respondent did not act in bad faith. No penalty.;COUNTERCLAIM – RECOVERY OF MONIES: Respondent intended to assist applicant financially in order to secure applicant’s commitment to employment. Respondent did not agree with applicant orally or in writing that applicant obliged to repay $3,500 and did not mention repayment when terminated applicant’s employment. Respondent paid applicant $3,500 to secure applicant’s loyalty and commitment and applicant fulfilled pre-employment agreement by subsequently commencing employment. Application dismissed. |
| Result | Application granted (unjustified dismissal) ; Compensation for humiliation etc ($5,000) ; Applications dismissed (good faith, penalty and counterclaim – recovery of monies) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4A;ERA s4A(b)(ii);ERA s4A(b)(iii);ERA s103A;ERA s124 |
| Number of Pages | 16 |
| PDF File Link: | 2012_NZERA_Christchurch_263.pdf [pdf 267 KB] |