| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 143 |
| Hearing date | 7 Mar 2013 |
| Determination date | 24 April 2013 |
| Member | E Robinson |
| Representation | J Puah ; A Kashyap |
| Location | Auckland |
| Parties | Eagle v Hill Park Dental Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unjustifiably disadvantaged by breach of confidentiality, relocation, reduction of hours and underpayment of wages – Applicant claimed unjustifiably dismissed by respondent - Whether respondent talking to employee about applicant’s bereavement situation breach of confidentiality – Kiwisaver opt-out form not provided - New employment agreement proposed – Threat of redundancy – Respondent sought to reclaim perks and gifts given to applicant after applicant raised grievance – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Applicant denied bereavement leave following death of applicant’s grandfather – Unpaid sick leave – RECOVERY OF MONIES – Applicant sought recovery of travel and medical costs – Receptionist |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Underpayment of wages genuine minor mistake. Applicant not unjustifiably disadvantaged by underpayment. Respondent should have been aware reducing hours would have adverse financial impact. Respondent tardy in responding to issues raised by applicant. Breach of confidence to discuss applicant’s bereavement situation. Applicant unjustifiably disadvantaged by breach of confidentiality, relocation and reduction of hours. Respondent undermined trust and confidence of employment relationship by seeking to reclaim gifts. Risk of applicant leaving was reasonably foreseeable. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: 50 per cent contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $3,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant entitled to bereavement leave, sick leave and holiday pay. Respondent to pay applicant $90 arrears of wages and holiday pay.;RECOVERY OF MONIES: Respondent to pay applicant $516 recovery of monies. |
| Result | Applications granted ; Contributory conduct (50%) ; Compensation for humiliation etc ($3,000) ; Reimbursement for lost wages (quantum to be determined) ; Arrears of wages and holiday pay ($90) ; Recovery of monies ($516.22) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 – ERA s4(1A)(b) - ERA s103(1)(b) – ERA s124 - ERA s128(2) – Privacy Act 1993 - Privacy Act 1993 principle 11 |
| Cases Cited | Allen v Transpacific Industries Group Ltd (t/a “Medismart Ltd”) (2009) 6 NZELR 530;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;Radius Residential Care Limited v McLeay [2010] ERNZ 371;Wellington Clerical Workers IUOW v Greenwich (1985) ERNZ Sel Cas 136; [1985] 2 NZLR 372 |
| Number of Pages | 20 |
| PDF File Link: | 2013_NZERA_Auckland_143.pdf [pdf 251 KB] |