| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 74 |
| Hearing date | 25-26 Feb 2014 |
| Determination date | 03 March 2014 |
| Member | T G Tetitaha |
| Representation | A Kiwa, J Kiwa, H Clark (in person) ; S Grice |
| Location | Tauranga |
| Parties | Kiwa and Ors v Phil's Place Ltd |
| Other Parties | Kiwa, Clark |
| Summary | COUNTERCLAIM - PRACTICE AND PROCEDURE - Respondent sought non-publication order - Whether applicants' former representative likely to reveal confidential information - UNJUSTIFIED DISMISSAL - Redundancy - Applicants claimed unjustifiably dismissed by respondent - Applicants employed on casual employment agreements - Respondent's director (R") ordered meal to be delivered to R's boat - Meal delivered to wrong place mistakenly - Applicants sworn at by R - Whether applicants dismissed immediately - Third applicant escorted from premises by security guard - 90 day trial period - Apology at subsequent staff meeting - Discussion of possibility of restaurant closing - Restaurant closed - COSTS - Applicants sought contribution towards costs - Kitchen hand and chefs" |
| Abstract | AUTHORITY FOUND -;COUNTERCLAIM - PRACTICE AND PROCEDURE: No identification of confidential information held by applicants' former representative requiring non-publication order. No breach of confidentiality to refer to matters within publicly available Authority determination. Non-publication order not available to prevent potential breaches without proper evidential foundation. Application for non-publication order dismissed.;UNJUSTIFIED DISMISSAL: Respondent conceded third applicant not casual employee. First and second applicants employed on regular basis. First and second applicants permanent employees. Applicants dismissed by R's actions after failed delivery of meal. Subsequent apology not received by first and second applicants and general apology to staff insufficient to rectify situation. No additional payment made to applicants and, even if payment made, applicants should not have been aware payment indicated still employed by respondent. Statement at meeting that applicants still employed only known to third applicant. Concerns around staff thefts applicants not responsible for, long waiting times for meals and playing unauthorised music primary motivation for closure of restaurant rather than financial concerns. Reasons for redundancy not genuine. Dismissals unjustified. REMEDIES: No contributory conduct. Respondent to pay first applicant $4,872 reimbursement of lost wages, second applicant $4,536 reimbursement of lost wages and third applicant $9,692 reimbursement of lost wages. $15,000 compensation appropriate for each applicant.;COSTS: Two days investigation meeting. Appropriate to increase notional daily tariff to reflect three unsuccessful pre-trial applications and unsuccessful counterclaim by respondent. Respondent to pay applicants $8,500 contribution towards costs. |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages ($4,872)(first applicant)($4,536)(second applicant)($9,692.40)(third applicant) ; Compensation for humiliation etc ($15,000)(each applicant) ; Costs in favour of applicants ($8,500) ; Application dismissed (counterclaim - practice and procedure) |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s124;ERA s134(2);ERA s160(1)(b);ERA s160(1)(f);ERA Second Schedule cl10;ERA Second Schedule cl15 |
| Cases Cited | Aoraki Corp Ltd v McGavin [1998] 1 ERNZ 601 ; [1998] 3 NZLR 276;Davis v Bank of New Zealand [2004] 2 ERNZ 511;Kiwa v Phil's Place Ltd [2014] NZERA Auckland 67;Lee v Minor Developments Ltd t/a Before Six Childcare Centre unreported, Shaw J, 23 December 2008, AC52/08;Lloyd-Barker v The Society for the Prevention of Cruelty to Animals Auckland Inc unreported, K Anderson, 14 September 2009, AA334/09;Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315;Wellington College of Education v Scott [1999] 1 ERNZ 98 |
| Number of Pages | 16 |
| PDF File Link: | 2014_NZERA_Auckland_74.pdf [pdf 282 KB] |