| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 252 |
| Hearing date | 16 Apr 2013 |
| Determination date | 14 June 2013 |
| Member | J Crichton |
| Representation | B Nalder, M Broadbelt ; C Rowe |
| Location | Whangarei |
| Parties | MacDonald v Whale Pumps Ltd t/a Denby Caterers |
| Summary | UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed by respondent - Whether applicant casual or permanent part-time employee – No written employment agreement – Argument via text message – Applicant accused respondent of lying – Intemperate language – Disciplinary investigation – Respondent sought return of keys – Whether applicant dismissed – Whether applicant constructively dismissed – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Whether applicant entitled to pay for hours worked without respondent’s knowledge – PENALTY – Applicant sought penalty for respondent’s failure to provide written employment agreement |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant worked as and when required. No pre-determined work pattern. Employment dependent on availability of work. No evidence employees applied for annual leave. Pay rises intended to maintain applicant’s margin above other staff. Applicant did not become permanent employee after taking on additional responsibilities. Applicant casual employee. Employment ended when applicant’s representative indicated applicant no longer wished to work. No dismissal. Relationship untroubled until text exchange. Disciplinary investigation warranted. Resignation not caused by respondent. No constructive dismissal.;ARREARS OF WAGES AND HOLIDAY PAY: Payment for hours worked at home never agreed to. Applicant’s claim spending time shopping inaccurate. Claim for cellphone calls unsustainable. Applicant’s diary entries not made contemporaneously. No arrears of wages. Respondent to pay applicant $292 arrears of holiday pay.;PENALTY: Respondent realised error. Employment agreements subsequently provided to staff. No penalty. |
| Result | Application partially granted (arrears of wages and holiday pay) ; Arrears of holiday pay ($292.81) ; Applications dismissed (unjustified dismissal)(penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Lee v Minor Developments Ltd t/a Before Six Childcare Centre unreported, Shaw J, 23 December 2008, AC52/08;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 |
| Number of Pages | 11 |
| PDF File Link: | 2013_NZERA_Auckland_252.pdf [pdf 173 KB] |