| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 72 |
| Hearing date | 12 Mar 2013 |
| Determination date | 14 June 2013 |
| Member | T MacKinnon |
| Representation | D Gelb ; I Matheson |
| Location | New Plymouth |
| Parties | McGovern v South Eastern Geophysical Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL - Abandonment – Applicant claimed unjustifiably disadvantaged by lack of procedure and unjustifiably dismissed by respondent – Whether applicant employed on fixed-term contract – Whether further work guaranteed – Applicant employed intermittently – Employment agreement only provided for first engagement – Applicant wished to remain in Gisborne following latest job – Whether applicant told respondent probable or possible that would not travel home with group – Applicant jokingly offered to assist with driving – Whether respondent aware applicant unavailable for return journey – Whether applicant abandoned employment – ARREARS OF HOLIDAY PAY – Applicant sought arrears of holiday pay – PENALTY – Applicant sought penalties for respondent’s failure to provide employment agreement or wage and time records, and failure to pay holiday pay – Seismic surveyor |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant understood terms and conditions of original agreement would apply to each discrete period of work. Applicant’s employment covered by original contract. No guarantee of further work but applicant had legitimate expectation of being employed for subsequent contract. Respondent reasonably believed applicant would report for return journey. Applicant failed to confirm plans. Applicant believed respondent knew applicant’s whereabouts. No abandonment of employment. Applicant given no opportunity to provide explanation. Dismissal did not meet requirements of natural justice. Dismissal deprived applicant of expected further work. Dismissal unjustified. REMEDIES: 20 per cent contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. Interest payable. $3,200 compensation appropriate. Leave reserved for parties to return to Authority if unable to quantify amounts due to applicant.;ARREARS OF HOLIDAY PAY: Appropriate for respondent to include holiday pay with applicant’s wages. Holiday pay identifiable component of wages. No arrears of holiday pay.;PENALTY: No jurisdiction to award penalty in relation to Holidays Act 2003. No evidence to suggest penalties appropriate. No penalty. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (20%) ; Reimbursement of lost wages (quantum to be determined) ; Interest (5%) ; Compensation for humiliation etc ($3,200) ; Applications dismissed (arrears of holiday pay)(penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s66;ERA s103A;ERA s124;Holidays Act 2003;Holidays Act 2003 s27;Holidays Act 2003 s28 |
| Cases Cited | Jinkinson v Oceana Gold (NZ) Ltd [2009] ERNZ 225 |
| Number of Pages | 16 |
| PDF File Link: | 2013_NZERA_Wellington_72.pdf [pdf 306 KB] |