| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 73 |
| Hearing date | 16 Nov 2012 |
| Determination date | 05 March 2013 |
| Member | T G Tetitaha |
| Representation | L Darroch ; S Singh |
| Parties | Van As v Auckland Airport Kiwi Hotel Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – Whether applicant harassed during employment – Whether respondent failed to provide safe workplace – Whether applicant threatened, assaulted and accused of theft – Whether applicant refused time off on Saturdays to attend family functions – Whether respondent refused to supply uniform – Heated discussion – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Whether applicant entitled to payment for Saturday work and overtime – Agreement for applicant to undertake extra renovation work – Deduction from applicant’s wages – Maintenance engineer |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Implied term in employment agreement respondent would provide workplace free from harassment. Saturday work not harassment. Applicant unable to prove respondent threatened to kick applicant out if applicant refused to work Saturdays. Both parties angry during discussion but words used not threatening and applicant unable to prove chased home by respondent’s director (“S”). Frosting of applicant’s windows and entry of applicant’s accommodation by real estate agents not harassment. No link between staff speculation applicant suspected of theft and respondent’s view. Respondent not required to provide uniform. Applicant hit hard enough by S to cause pain on two occasions but applicant unable to prove hit by S on third occasion. Two assaults of applicant breached respondent’s obligation to provide safe workplace. Assaults not raised with respondent until after applicant’s resignation one year later. No constructive dismissal.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant unable to prove entitled to payment for Saturday work and overtime. Applicant underpaid for renovation work. No basis for applicant to claim three days bereavement leave when only one day taken. Applicant paid for statutory holidays worked. Applicant not paid full annual leave entitlement. Respondent not entitled to make deduction from applicant’s wages. Respondent to pay applicant $3,061 arrears of wages and $2,431 arrears of holiday pay. Interest payable. |
| Result | Application granted (arrears of wages and holiday pay) ; Arrears of wages ($3,061.73) ; Arrears of holiday pay ($2,431.18) ; Interest (5%) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s131;ERA Second Schedule cl11;Summary Offences Act 1981 s2(1) |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;Barry v Anoop Investments Ltd unreported, M Urlich, 18 January 2007, AA11/07;Corbett v National Mutual Finance Ltd unreported, Richardson, Gault and McKay JJ, 10 February 1992, CA172/91;Griffith v Sunbeam Corp Ltd unreported, Couch J, 28 July 2006, WC13/06;New Zealand Merchant Service Guild IUOW Inc v New Zealand Rail Ltd [1991] 2 ERNZ 587;RNZAF Museum Trust Board v Hunter unreported, Shaw J, 1 March 2000, WC11/00;Taiapa v Te Runanga O Turanganui A Kiwa t/a Turanga Ararau Private Training Establishment [2012] NZERA Auckland 252;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;Wellington Road Transport etc IUOW v Fletcher Construction Co Ltd (1983) ERNZ Sel Cas 59;Whitehead v Metallic Sweeping (1998) Ltd unreported, Y Oldfield, 9 January 2009, AA6/09 |
| Number of Pages | 12 |
| PDF File Link: | 2013_NZERA_Auckland_73.pdf [pdf 200 KB] |