| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 189 |
| Hearing date | 3 Apr 2013 |
| Determination date | 12 September 2013 |
| Member | M B Loftus |
| Representation | P Moore ; R Thompson |
| Location | Christchurch |
| Parties | Kerr v Sharna Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – Whether applicant offered fulltime hours – Whether applicant would have accepted position with less than fulltime hours – Exchanges about terms of proposed written employment agreement – Whether respondent’s failure to confirm fulltime hours unilateral variation of hours of work – PENALTY – Applicant sought penalty for respondent’s failure to provide written employment agreement, failure to be responsive and communicative and failure to provide rest and meal breaks |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Fulltime employment envisaged and offered. Reduction in hours breach of sufficient magnitude to nullify original agreement and cause applicant to conclude agreement breached irreparably. Respondent aware applicant considered employment unworkable without fulltime hours. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $4,480 reimbursement of lost wages. $5,000 compensation appropriate.;PENALTY: Employment agreement prepared and failure to agree how agreement to be delivered to applicant not breach of respondent’s obligations. Parties communicated, albeit ineffectively. Respondent failed to provide rest and meal breaks but no evidence of deliberate breach of obligation. No penalty. |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages ($4,480) ; Compensation for humiliation etc ($5,000) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s69ZD;ERA s103A;ERA s124;ERA s128(2) |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;Gorrie Fuel (SI) Ltd v Gittoes unreported, Couch J, 8 November 2007, CC21/07;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;Z v A [1993] 2 ERNZ 469 |
| Number of Pages | 11 |
| PDF File Link: | 2013_NZERA_Christchurch_189.pdf [pdf 183 KB] |