| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 56 |
| Hearing date | 11 Mar 2014 |
| Determination date | 11 April 2014 |
| Member | H Doyle |
| Representation | C McDonald, R Thompson ; R Loversidge |
| Location | Christchurch |
| Parties | Cassidy v Wentworth and Anor t/a Wentworth Carrying |
| Other Parties | Chambers |
| Summary | UNJUSTIFIED DISMISSAL - Dismissal - Applicant claimed unjustifiably dismissed by respondent - Whether applicant employed on temporary casual basis for two week period with no expectation of ongoing work - Collision with parked truck while reversing - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - PENALTY - Applicant sought penalty for respondent's failure to provide employment agreement and failure to keep and provide wage and time records |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: No written fixed term agreement. Genuine reason for fixed term engagement did not include establishing applicant's suitability for permanent employment. Applicant not fixed term employee. Offer of employment not clearly expressed to be casual employment for two weeks with only possibility of further work. Unlikely applicant would advise WINZ had full time work if clear to applicant position only for two weeks. Unusual applicant would be trained for one week if only employed for two weeks. Request for applicant's uniform size more consistent with ongoing employment. Applicant permanent employee. Applicant dismissed following collision with parked truck. Respondent reached view applicant struggling but concerns about applicant's driving not raised with applicant. Performance issues would not justify summary dismissal before issues raised and applicant given opportunity to improve. Collision with parked truck caused by applicant's inexperience and perhaps failure to use mirrors correctly but not deliberate and not conduct justifying summary dismissal. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $7,150 reimbursement of lost wages. $5,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant not paid for three days worked. Respondent to pay applicant $360 arrears of wages. Respondent to pay applicant arrears of holiday pay, quantum to be determined. Interest payable. Leave reserved for parties to return to Authority if unable to quantify holiday pay.;PENALTY: Applicant did not ask for employment agreement and did not know employment agreement required. Wage and time records not provided but details provided when requested and relationship so short no extensive records existed. No penalty. |
| Result | Applications granted (unjustified dismissal)(arrears of wages and holiday pay) ; Arrears of wages ($360) ; Arrears of holiday pay (quantum to be determined) ; Interest (5%) ; Reimbursement of lost wages ($7,150) ; Compensation for humiliation etc ($5,000) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s66;ERA s103A(3);ERA s124;ERA Second Schedule cl11;Judicature Act 1908 s87(3) |
| Number of Pages | 13 |
| PDF File Link: | 2014_NZERA_Christchurch_56.pdf [pdf 192 KB] |