| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 133 |
| Hearing date | 3 Sep 2013 - 25 Oct 2013 (2 days) |
| Determination date | 07 April 2014 |
| Member | R A Monaghan |
| Representation | M Moncur ; V Raman, S Goundar |
| Parties | Disoibau v Lal t/a The Bake House |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - SEXUAL HARASSMENT - Applicant claimed sexually harassed by respondent - Whether respondent looked applicant up and down, touched applicant's bottom, made comments about applicant's appearance, made suggestive comments about applicant and commented about female golfer's appearance to applicant - Whether respondent made comments suggesting parties embark on sexual relationship - Whether respondent indicated would not take applicant's desired motorway off ramp while driving applicant home and said applicant would be dropped off after respondent had finished drinking - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Whether applicant not working - Whether applicant assaulted fellow employee (S") - Whether applicant dismissed after altercation with S or abandoned employment after being asked to hand car keys to different employee - RAISING PERSONAL GRIEVANCE - Whether applicant's unjustified disadvantage grievance raised within 90 days - PENALTY - Applicant sought penalties for respondent's failure to provide written employment agreement, failure to pay minimum wage and failure to pay holiday pay - Kitchen hand" |
| Abstract | AUTHORITY FOUND -;ARREARS OF WAGES AND HOLIDAY PAY: Appropriate to accept applicant's claim as to hours worked in absence of wage and time record being maintained by respondent. Applicant entitled to payment of adult minimum wage in absence of agreement as to hourly rate. Applicant underpaid. Respondent to pay applicant arrears of wages and holiday pay, quantum to be determined.;SEXUAL HARASSMENT: Applicant's allegations about respondent's conduct generally not specific. Insufficient evidence to conclude general incidents occurred. Insufficient evidence respondent suggested parties stop at motel on way home. Respondent commented to applicant about female employee, about making lovely babies with applicant, and about being respondent's girlfriend. Comments made to applicant taken seriously as attempts to initiate sexual relationship, although insufficient evidence respondent actually attempted or intended to initiate sexual relationship. Comments use of language of sexual nature unwelcome and offensive to applicant with detrimental effect on applicant's employment. Applicant sexually harassed. Respondent's general behaviour during motorway drive unwise and inappropriate but not more sinister and applicant interpreted behaviour as such because sensitised to respondent's conduct. REMEDIES: No contributory conduct. $4,000 compensation appropriate.;UNJUSTIFIED DISMISSAL: More likely than not applicant dismissed. Applicant dismissed without opportunity to be heard. Dismissal unjustified. REMEDIES: More likely than not applicant assaulted S. Applicant spent time at bar chatting when should have been working. Applicant failed to engage with respondent throughout relevant events. 100 per cent contributory conduct.;RAISING PERSONAL GRIEVANCE: No unjustified disadvantage grievance properly before Authority.;PENALTY: Claims for penalties not pursued and penalties for breaches of Holidays Act 2003, failure to pay minimum wage and failure to provide written employment agreement recoverable by Labour Inspector. No penalty. |
| Result | Applications granted (arrears of wages and holiday pay)(sexual harassment)(unjustified dismissal) ; Arrears of wages and holiday pay (quantum to be determined) ; Contributory conduct (100%)(unjustified dismissal) ; $4,000 compensation appropriate (sexual harassment) ; Applications dismissed (raising personal grievance)(penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s65;ERA s103A(2);ERA s103A(3);ERA s103A(4);ERA s103A(5);ERA s108;ERA s124;ERA s132;Holidays Act 2003;Holidays Act 2003 s76;Minimum Wage Act 1983;Minimum Wage Act 1983 s4;Minimum Wage Act 1983 s4A;Minimum Wage Act 1983 s4B;Minimum Wage Act 1983 s4B(1)(c);Minimum Wage Act 1983 s10;Minimum Wage Order 2011 cl3;Minimum Wage Order 2012 cl3 |
| Number of Pages | 14 |
| PDF File Link: | 2014_NZERA_Auckland_133.pdf [pdf 218 KB] |