| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 577 |
| Hearing date | 5 Dec 2013 |
| Determination date | 17 December 2013 |
| Member | T G Tetitaha |
| Representation | M Penny ; No appearance |
| Location | Auckland |
| Parties | Philpot v Green Waste Recycling Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably disadvantaged by non provision of work for one month and unjustifiably dismissed by respondent - Applicant dismissed following damage to truck and traffic infringement - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - Whether applicant entitled to KiwiSaver employee and employer contributions - PENALTY - GOOD FAITH - Applicant sought penalty for respondent's breach of good faith - Failure to provide written employment agreement - COSTS - Applicant sought contribution towards costs - No appearance for respondent - Truck Driver |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Applicant could not have expected to work while stood down pending truck repair. No unjustified disadvantage. Damage to truck serious misconduct capable of leading to dismissal. Defective process. Applicant unaware meeting disciplinary and could lead to dismissal. No evidence respondent met any mandatory requirements. Dismissal unjustified. REMEDIES: Reduction in remedies appropriate to reflect repairs, infringement notice and overpayment by respondent. $204 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Respondent to pay applicant $865 arrears of KiwiSaver contribution and $158 arrears of holiday pay.;PENALTY - GOOD FAITH: Non provision of employment agreement not found to be breach of good faith. No penalty.;COSTS: One day investigation meeting. No factors increasing costs. Decrease in costs appropriate to reflect partial success. Respondent to pay applicant $1,750 contribution towards costs. |
| Result | Application granted (unjustified dismissal)(arrears of wages and holiday pay); Compensation for humiliation etc ($204); Arrears of KiwiSaver contribution ($865.21); Arrears of holiday pay ($158.29); Applications dismissed (unjustified disadvantage)(penalty - good faith); Costs in favour of applicant ($1,750) |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s103A(2);ERA s103A(3);ERA s124;ERA s131 |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;Makatoa v Restaurant Brands (NZ) Ltd [1999] 2 ERNZ 311;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483 |
| Number of Pages | 9 |
| PDF File Link: | 2013_NZERA_Auckland_577.pdf [pdf 233 KB] |