| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 156 |
| Hearing date | 25 Mar 2014 |
| Determination date | 24 April 2014 |
| Member | E Robinson |
| Representation | C Bennett ; G Pollak |
| Location | Auckland |
| Parties | Thomas v Vogelsang Pty Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Dismissal - Applicant claimed unjustifiably disadvantaged by respondent's actions and unjustifiably dismissed by respondent - Whether respondent failed to reimburse applicant's expenses - Whether respondent failed to complete ACC forms in timely manner - Whether respondent made late payment of applicant's wages - Whether respondent failed to support applicant and advertised for new sales manager - Whether applicant's employment ended by mutual agreement - Autonomous role with support from overseas - Concerns about irregularity of applicant's reporting - Back injury - Surgery - Without prejudice discussions - PENALTY - Applicant sought penalty for respondent's failure to provide employment agreement and breach of good faith - Business development manager |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Applicant failed to raise issue of non-payment of expenses for ten months and respondent acted justifiably and in good faith by responding in timely manner and requesting supporting documentation. Delay in communications between Australia and New Zealand resulted in confusion about applicable ACC payment periods but no loss suffered by applicant. Respondent acted in good faith when informed of non-payment of applicant's salary and resolution of issue would have been quicker if applicant had been communicative with respondent. No lack of support provided to applicant but rather applicant failed to communicate as expected. Advertisement for new sales manager may have caused applicant to be concerned about security of own position but terms and conditions of employment not affected to applicant's disadvantage and applicant did not provide respondent with opportunity to explain reasoning behind placement of advertisement. No unjustified disadvantage. No satisfactory agreement reached regarding terms on which applicant's employment would cease. Applicant dismissed by letter from respondent's lawyers. Dismissal unjustified. REMEDIES: Applicant contributed to respondent's understanding employment relationship at end by initiating proposal to resign in return for financial payment and without offer to work notice period or during negotiations. 100 per cent contributory conduct.;PENALTY: Respondent responsive and communicative to applicant. No breach of good faith. No obligation to provide written employment agreement in Australia but respondent should have ascertained requirements of New Zealand employment law. $1,000 penalty appropriate. |
| Result | Applications granted (unjustified dismissal)(penalty) ; Contributory conduct (100%) ; Penalty ($1,000)(payable to Crown) ; Application dismissed (unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(b);ERA s63A;ERA s65;ERA s103(1)(b);ERA s124 |
| Number of Pages | 16 |
| PDF File Link: | 2014_NZERA_Auckland_156.pdf [pdf 257 KB] |