| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 148 |
| Hearing date | 19 Sep 2013 |
| Determination date | 22 November 2013 |
| Member | T MacKinnon |
| Representation | D Oliver ; no appearance |
| Location | Napier |
| Parties | Ngametua v B&H Hawkes Bay Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed unjustifiably dismissed by respondent – No written employment agreement – Applicant drafted employment agreement for respondent’s consideration – Draft agreement not signed – Business partner of respondent’s director (“H”) removed from involvement with bar due to undischarged bankruptcy status – H continued to frequent bar and gave applicant advice – H abusive and aggressive towards applicant – Applicant proposed closing bar – H told to leave bar – Respondent enquired about applicant purchasing bar – Price too high for applicant – Whether applicant unwilling to work with H - Applicant removed from position and offered part time on-call bar staff position – Respondent alleged applicant failed to promote bar, increase sales and bring in new customers – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Whether verbal agreement applicant would receive 10 per cent of bar takings – Whether applicant paid below minimum wage – COSTS – Applicant sought contribution towards costs – Applicant made Calderbank offer – No appearance for respondent – Bar manager |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: No investigation took place. No prior discussion of applicant’s failure to promote bar. Offer of part-time role not reasonable alternative to Bar Manager position. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $7,368 reimbursement of lost wages. $6,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: No evidence of verbal agreement between parties regarding takings. Respondent did not provide proper time records. Applicant paid less than minimum wage for all but one week. Respondent to pay applicant $3,592 arrears of wages and $287 arrears of holiday pay. Interest payable.;COSTS: Less than one day investigation meeting. Applicant offered to settle for less than award made. Appropriate to increase notional daily tariff. Applicant legally aided. Respondent to pay applicant $2,797 indemnity costs. |
| Result | Applications granted ; Arrears of wages ($3,592) ; Arrears of holiday pay ($287.36) ; Interest (5%) ; Reimbursement of lost wages ($7,368.90) ; Compensation for humiliation etc ($6,000) ; Costs in favour of applicant ($2,797.65) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s130;ERA s132;ERA second schedule cl12;Holidays Act 2003 s22(2)(b)(ii)(B);Minimum Wage Act 1983;Minimum Wage Act 1983 s11;Minimum Wage Order 2011 |
| Number of Pages | 10 |
| PDF File Link: | 2013_NZERA_Wellington_148.pdf [pdf 224 KB] |