| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 527 |
| Hearing date | 13 Sep 2013 |
| Determination date | 15 November 2013 |
| Member | R Arthur |
| Representation | P Toi ; M Ryan |
| Parties | Sharma v Chargrill Burgers Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Applicant sought leave to raise grievance out of time -Applicant claimed labour inspector, Youth Law advisor and Authority support officer did not advise applicant of 90 day limit - Applicant claimed threatened and abused by respondent - PRACTICE AND PROCEDURE - Identity of employer - Original employer company struck off - Whether applicant signed employment agreement with respondent - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay |
| Abstract | AUTHORITY FOUND –;RAISING PERSONAL GRIEVANCE: Applicant informed of 90 day limit and not provided with misleading information. Parties' employment agreement referred to 90 day limit. Respondent sent applicant threatening text messages. Likely verbal threats made. No evidence applicant so frightened that unable to consider raising grievance. No exceptional circumstances. Leave to raise grievance out of time declined.;PRACTICE AND PROCEDURE: No evidence of employment agreement. Applicant’s IRD summary showed payments came from respondent. Applicant aware respondent made payments. Respondent employer.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant only entitled to wages for period employed by respondent. Allowing claim against former employer pyrrhic. Respondent failed to produce adequate time and wage records. Applicant’s evidence preferred. Applicant overpaid holiday pay. Applicant unable to establish would have worked on public holidays. Respondent to pay applicant $5,142 arrears of wages. Interest payable. |
| Result | Application granted (practice and procedure)(arrears of wages) ; Arrears of wages ($5,142.74) ; Interest (5%) ; Applications dismissed (raising personal grievance)(arrears of holiday pay) ; Disbursements in favour of applicant ($71.56)(filing fee) ; Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA s65(2)(a)(vi) – ERA s114(4)(b) - ERA s114(6) – ERA s115 - ERA s115(b) – ERA s115(c) – ERA s130(1) – ERA s132(1) – ERA s132(2) - ERA s174 – ERA second schedule cl11 - Judicature (Prescribed Rate of Interest) Order 2011 |
| Cases Cited | Nokes v Doncaster Amalgamated Collieries, Ltd [1940] AC 1014;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] 1 ERNZ 808 |
| Number of Pages | 11 |
| PDF File Link: | 2013_NZERA_Auckland_527.pdf [pdf 194 KB] |