| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2014] NZERA Wellington 36 |
| Hearing date | 6 Mar 2014 |
| Determination date | 16 April 2014 |
| Member | P R Stapp |
| Representation | D Oliver ; B Forbes |
| Location | Napier |
| Parties | Cawthorne v Allwaze Designs Ltd |
| Summary | ARREARS OF HOLIDAY PAY - Applicant sought arrears of holiday pay - Applicant paid for two days as annual leave rather than sick leave - Whether applicant not entitled to sick leave for personal stress - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably disadvantaged by warnings and unjustifiably dismissed by respondent - Whether applicant abusive - Refusal to follow instructions - Dishonesty in regard to use of sick leave - Two written warnings - Harassment - Yelling - Personality clash - Work subsidy scheme - Salesperson |
| Abstract | AUTHORITY FOUND -;ARREARS OF HOLIDAY PAY: No legal requirement to distinguish between personal stress and workplace stress for employee to be entitled to paid sick leave. Respondent did not request medical certificate. Applicant entitled to be paid two days sick leave rather than annual leave. Respondent to pay applicant $168 arrears of holiday pay.;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Respondent's owner (M") misunderstood information received from Ministry of Business, Innovation and Employment ("MBIE") and ignored requirement to follow proper process before taking appropriate action. Respondent's actions predetermined. First written warning typed in advance. Second written warning issued while applicant on telephone with MBIE without applicant being aware of allegations or given opportunity to comment. M made no allowance for fact directly involved in matter. Parties too emotionally involved for respondent to have made genuine conclusion based on applicant's explanations. Allegations not put to applicant properly. Respondent's allegations inconsistent with one example given in dismissal e-mail. Applicant did lose temper but reasons relied on by respondent for dismissal did not fit definition of serious misconduct allowing instant dismissal under employment agreement. Applicant unjustifiably disadvantaged by second written warning. Dismissal unjustified. REMEDIES: 25 per cent contributory conduct. Respondent to pay applicant $1,260 reimbursement of lost wages. $1,500 compensation appropriate." |
| Result | Applications granted ; Arrears of holiday pay ($168) ; Contributory conduct (25%) ; Reimbursement of lost wages ($1,260) ; Compensation for humiliation etc ($1,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(2);ERA s103A(3);Holidays Act 2003 |
| Number of Pages | 13 |
| PDF File Link: | 2014_NZERA_Wellington_36.pdf [pdf 193 KB] |