| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 190 |
| Hearing date | 18 Dec 2012, 21 Feb 2013 |
| Determination date | 14 May 2013 |
| Member | E Robinson |
| Representation | E Hartdegen ; C Eggleston |
| Location | Auckland |
| Parties | Hull v Edginton Resources Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Dismissal - Applicant claimed unjustifiably disadvantaged by respondent's failure to provide applicant full-time hours following maternity leave and unjustifiably dismissed by respondent - Suspicion over theft - Bag search - Applicant told co-worker applicant going to resign - Applicant returned keys to work place and took all personal belongings - Respondent later provided with medical certificate for applicant's absence - Whether employee resigned - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - Whether applicant entitled to product sale commission and profit share - PENALTY - Applicant sought penalty for respondent's failure to provide employment agreement and payslips - Whether respondent breached duty of good faith COUNTERCLAIM - RESTRAINT OF TRADE - Whether applicant breached implied duty of fidelity and good faith - Whether applicant serviced respondent's clients at home - Salon manager |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Applicant not accused of theft. Applicant not dismissed following bag search. Applicant upset when applicant expressed intention to resign. No confirmation of resignation in writing. Medical certificate should have put respondent on notice applicant not resigned. Duty to be active and constructive and ascertain true situation concerning applicant. Applicant dismissed. Dismissal unjustified. No evidence applicant raised unjustified disadvantage claim within timeframe or followed procedure under Parental Leave and Employment Protection Act 1987. No evidence matter referred to Authority. Applicant time barred from bringing unjustified disadvantage claim. REMEDIES: 100 per cent contributory conduct.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant not entitled to arrears of product sales commission. Applicant not entitled to profit share payment as respondent not profitable. Applicant exhausted sick leave during pregnancy and used annual leave. No arrears of wages or holiday pay.;GOOD FAITH - PENALTY: No disadvantage suffered by non-provision of employment agreement. No public policy considerations. Respondent's new payroll system ensured correct time and wage records kept. No penalty.;COUNTERCLAIM - RESTRAINT OF TRADE: Applicant serviced respondent's clients at home. Respondent suffered loss as result of applicant's breach of duty of fidelity and good faith. Unlikely respondent would have retained or obtained further custom from clients applicant serviced at home. Applicant to provide respondent full disclosure of all clients serviced and earnings. Applicant accountable to respondent for earnings. Applicant to pay respondent damages, quantum to be determined. |
| Result | Applications partially granted; Orders made; Contributory conduct (100%); Damages (quantum to be determined); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA - ERA s4 - ERA s4(1A)(b) - ERA s4A(a) - ERA s4A(b) - ERA s63A - ERA s65 - ERA s124 - ERA s130 - ERA s130(g) - ERA s130(4) - ERA s134 - ERA s135(1) - ERA s144(1) -Holidays Act 2003 - Holidays Act 2003 s18(4) - Parental Leave and Employment Protection Act 1987 - Parental Leave and Employment Protection Act 1987 s56(2)(a) - Parental Leave and Employment Protection Act 1987 s56(4) - Parental Leave and Employment Protection Act 1987 s57 - Parental Leave and Employment Protection Act 1987 s58 |
| Cases Cited | Allen v Transpacific Industries Group Ltd (t/aMedismart Ltd) (2009) 6 NZELR 530;Boobyer v Good Health Wanganui Ltd unreported, Goddard CJ, 24 Feb 1994, WEC 3/94;Herbert Morris Ltd v Saxelby [1916] 1 AC 688;Schilling v Kidd Garrett [1977] 1 NZLR 243" |
| Number of Pages | 26 |
| PDF File Link: | 2013_NZERA_Auckland_190.pdf [pdf 903 KB] |