| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 98 |
| Hearing date | 16 Jul 2013 |
| Determination date | 05 August 2013 |
| Member | M Ryan |
| Representation | J Murphy ; no appearance |
| Location | Wellington |
| Parties | Smith v Kereru Investments Ltd |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay - Salary often underpaid or not paid at all – No payment in lieu of notice – Whether applicant paid below minimum wage - UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unjustifiably disadvantaged by respondent’s failure to ensure hours reasonable, failure to ensure rest and meal breaks available, suspension and first dismissal – Applicant claimed unjustifiably dismissed by respondent – Applicant expected to work long hours – Limited assistance provided to applicant – Same day delivery required - Customer complaint made – Applicant suspended – Applicant dismissed – Respondent requested applicant return to work – Applicant accepted - Applicant became increasingly stressed – Applicant took sick leave – Medical certificate obtained – Applicant attempted to resign – Informed six weeks notice required – Applicant returned from sick leave and informed not required to work - Applicant instructed to return uniform – PENALTY – Applicant sought penalty for respondent's failure to provide time and wage records – COSTS – Applicant sought contribution towards costs – No appearance for respondent - Courier driver |
| Abstract | AUTHORITY FOUND –;ARREARS OF WAGES AND HOLIDAY PAY – Applicant paid below minimum wage. Applicant entitled to payment for notice period. Respondent to pay applicant $13,416 arrears of wages and $3,239 arrears of holiday pay. Interest payable.;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Expectation applicant work 13.5 hours per day without breaks unreasonable. Unmanageable workload breach of respondent’s duty to provide safe and healthy workplace. Applicant became increasingly anxious and fatigued as consequence of work. No provision for suspension in employment agreement. First dismissal unjustified. Respondent’s statements to applicant indicative of dismissal. First dismissal more fairly described as unjustified dismissal. Applicant unjustifiably disadvantaged by unreasonable hours and suspension. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: Respondent to pay applicant $11,748 reimbursement of lost wages. $7,000 compensation appropriate.;PENALTY: Respondent failed to provide time and wage records. Omission impeded applicant’s ability to quantify claims. Failure to provide records deliberate. Applicant directly affected by respondent’s actions. $1,500 penalty appropriate.;COSTS: Length of investigation meeting not specified. Applicant’s advocate prepared on assumption respondent would appear. Respondent to pay applicant $1,000 contribution towards costs. |
| Result | Applications granted ; Arrears of wages ($13,416.52) ; Arrears of holiday pay ($3,239.36) ; Interest (5%) ; Reimbursement of lost wages ($11,748.62) ; Compensation for humiliation etc ($7,000) ; Penalty ($1,500)(payable to applicant); Costs in favour of applicant ($1,000) |
| Main Category | Personal Grievance |
| Statutes | ERA - ERA s122 – ERA s128(2) - ERA s130 – ERA s130(2) - ERA s132 – ERA s136(2) – ERA second schedule cl11 - Holidays Act 27(2) - Judicature Act 1908 s87(3) - Minimum Wage Act 1983; - Minimum Wage Act 1983 s6; - Minimum Wage Orders 2011; - Minimum Wage Orders 2012 |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136; [1985] 2 NZLR 372;Singh v Sherildee Holdings Ltd t/a New World Opotiki unreported, Couch J, 22 September 2005, AC53/05;Wellington, Taranaki and Malborough Clerical etc IUOW v Greenwich (t/a Greenwich and Associates Employment Agency and Complete Fitness Centre) (1983) ERNZ Sel Cas 95 |
| Number of Pages | 12 |
| PDF File Link: | 2013_NZERA_Wellington_98.pdf [pdf 267 KB] |