| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 58 |
| Hearing date | 30 Nov 2012 |
| Determination date | 19 February 2013 |
| Member | T G Tetitaha |
| Representation | D Vinnicombe ; R Parmenter |
| Location | Auckland |
| Parties | Zhu v Renaissance Investments and Finance Group Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – Refusal to follow instruction applicant considered unlawful Applicant told not to report for work after refused to sign application for six months leave without pay – ARREARS OF WAGES – Applicant sought arrears of wages – Whether applicant entitled to commission payments – COUNTERCLAIM – RECOVERY OF MONIES – Respondent sought recovery of overpaid salary – Whether applicant had valid work visa – Whether applicant took unauthorised paid leave in China – COSTS – Applicant sought contribution towards costs – Financial analyst |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant constructively dismissed by respondent’s instruction not to report for work after applicant refused to sign leave application. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $7,870 reimbursement of lost wages. $3,000 compensation appropriate. Interest payable.;ARREARS OF WAGES: Respondent to pay applicant $3,676 arrears of wages. Interest payable.;COUNTERCLAIM – RECOVERY OF MONIES: Applicant had valid work visa and authorised to take leave in China. No recovery of monies.;COSTS: Less than one day investigation meeting. Not appropriate to increase notional daily tariff. Respondent to pay applicant $1,750 contribution towards costs. |
| Result | Applications granted (unjustified dismissal)(arrears of wages) ; Reimbursement of lost wages ($7,870.20) ; Compensation for humiliation etc ($3,000) ; Arrears of wages ($3,676.35) ; Interest (5%) ; Application dismissed (counterclaim – recovery of monies) ; Costs in favour of applicant ($1,750) |
| Main Category | Personal Grievance |
| Statutes | ERA s128;ERA s128(1);ERA s128(2);ERA s131;ERA Second Schedule cl15 |
| Cases Cited | Kevey v Inspire Enterprises Ltd unreported, J Wilson, 18 November 2009, AA412/09;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808;Smaill v Sims Brothers (1992) Ltd [2011] NZERA Christchurch 126;Yong (t/a Yong & Co Chartered Accountants) v Chin [2007] ERNZ 322 |
| Number of Pages | 7 |
| PDF File Link: | 2013_NZERA_Auckland_58.pdf [pdf 238 KB] |