| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2014] NZERA Wellington 30 |
| Hearing date | 4 Dec 2013 |
| Determination date | 07 April 2014 |
| Member | T MacKinnon |
| Representation | J Murphy ; D Robb |
| Location | Palmerston North |
| Parties | Hangar v REH Property Management Ltd t/a Ray White Real Estate |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Constructive Dismissal - Applicant claimed unjustifiably disadvantaged by removal of work vehicle for travel to and from work, requirement to attend meeting and suspension - Applicant claimed unjustifiably dismissed by respondent - Whether applicant suspended when told to go home and remove pink stripes from applicant's hair - Whether applicant bullied - Manager raised issues - Whether respondent raised allegations after applicant went on sick leave to intimidate applicant - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - Whether applicant's remuneration fell below minimum wage rate - Whether applicant owed commission payments - PENALTY - GOOD FAITH - Applicant sought penalty for respondent's breach of good faith duty - Property manager |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Provision of work vehicle discretionary. Reasonable for respondent to investigate complaint about conduct and alleged intoxication of vehicle's driver. Applicant's acknowledgement had used vehicle to visit friend in different town tacit acknowledgement had breached vehicle use term of employment agreement. Respondent ensured applicant had transport to and from work. Respondent had good cause to remove applicant's use of work vehicle for travel to and from workplace while investigated complaint about applicant. Applicant not unjustifiably disadvantaged by removal of work vehicle. Respondent setting up meeting without providing information in advance about purpose of meeting and late offer for applicant to bring support person unfair but meeting resulted in shared commitment by parties to focus on future. Applicant not unjustifiably disadvantaged by requirement to attend meeting. Applicant suspended when sent home with instructions to sort out hair colour. No discussion before applicant sent home or opportunity for applicant to explain. No previous instruction given to applicant and no indication applicant could be suspended if failed to remove pink colouring as requested. Applicant unjustifiably disadvantaged by suspension. No basis to applicant's allegations of bullying. Respondent had no idea applicant becoming unwell. Timing of letter to applicant raising allegations unfortunate but not attempt to intimidate or persuade applicant to resign. Respondent did not embark on course of conduct with deliberate and dominant purpose of coercing applicant to resign. Applicant's resignation brought about by combination of events including suspension, late payment for time applicant suspended and underpayments. Actions amounted cumulatively to breach of applicant's employment agreement sufficiently serious to warrant applicant leaving employment. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $6,000 compensation appropriate. Leave reserved for parties to return to Authority if unable to quantify any amount.;ARREARS OF WAGES AND HOLIDAY PAY: Days applicant suspended treated as part of applicant's annual leave entitlement. Applicant entitled to be reimbursed $192 arrears of holiday pay. Applicant's remuneration less than minimum wage during part of applicant's employment. Applicant entitled to be reimbursed for underpayment. Applicant not paid less than minimum wage in subsequent period because commission payments to be considered as part of applicant's remuneration. Changes to commission payment scheme unilateral and made without written notification to applicant as required by employment agreement. Applicant underpaid commission payments. Respondent to pay applicant $2,937 arrears of wages and $427 arrears of holiday pay. Interest payable.;PENALTY: Not appropriate case for penalties. No penalty. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal)(arrears of wages and holiday pay) ; Arrears of wages ($2,937.90) ; Arrears of holiday pay ($427.34) ; Interest (5%) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($6,000) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s103A;ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s128;Minimum Wage Act 1983;Minimum Wage Order 2012;Minimum Wage Order 2012 r4;Minimum Wage Order 2012 r4(c);Minimum Wage Order 2013 |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;Birss v Secretary for Justice [1984] 1 NZLR 513;Graham v Airways Corp of New Zealand Ltd [2005] ERNZ 587;Gunning v Bankrupt Vehicle Sales and Finance Ltd [2013] NZEmpC 212;Idea Services Ltd v Dickson [2009] ERNZ 372;Tawhiwhirangi v Attorney-General in respect of Chief Executive, Department of Justice [1993] 2 ERNZ 546 |
| Number of Pages | 19 |
| PDF File Link: | 2014_NZERA_Wellington_30.pdf [pdf 216 KB] |