| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 162 |
| Hearing date | 23 Apr 2014 |
| Determination date | 29 April 2014 |
| Member | R Arthur |
| Representation | M Moncur ; Z Hang |
| Parties | Zhang v Fuchunjiang Ltd t/a Fuchunjiang Restaurant |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Work visa - Whether applicant had sufficient experience as Chinese chef - Whether applicant ran short of sliced meat - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - Applicant not allowed to start work after arriving in New Zealand because repairs to restaurant not yet completed - COSTS - Applicant sought contribution towards costs - Chinese chef |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: No need to resolve conflict of evidence between parties because dismissal not action of fair and reasonable employer even on respondent's account. Disciplinary letter not sufficient to put applicant on notice of problem and respondent aware applicant could not read English. Concerns raised could only be considered matters of performance in particular circumstances. No objective standards set to measure applicant's performance, no reasonable time provided for applicant to meet standards and possible remedial steps not exhausted. Fact applicant required to work further 16 days indicated respondent's confidence in applicant not impaired to extent required to justify dismissal for serious misconduct. Applicant did not misrepresent previous experience. Defects in way respondent handled matter not minor. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $1,800 reimbursement of lost wages. $3,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant not advised to delay departure from China or that may not be work at restaurant as soon as applicant arrived in New Zealand. Applicant commenced work under employment agreement and entitled to be paid from date arrived in New Zealand with appropriate work visa. Applicant received less than minimum wage considering hours worked after restaurant opened. Applicant not paid holiday pay on termination of employment. Provision in employment agreement applicant only entitled to annual leave after one year's continuous service in breach of Holidays Act 2003. Respondent to pay applicant $7,884 arrears of wages and $844 arrears of holiday pay.;COSTS: Less than one day investigation meeting. Not appropriate to adjust notional daily tariff. Respondent to pay applicant $3,000 contribution towards costs. |
| Result | Applications granted ; Reimbursement of lost wages ($1,800) ; Compensation for humiliation etc ($3,000) ; Arrears of wages ($7,884.48) ; Arrears of holiday pay ($844.80) ; Costs in favour of applicant ($3,000) ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3)(a);ERA s103A(3)(c);ERA s103A(5);ERA s124;ERA s128;ERA s131;ERA s174;ERA Second Schedule cl15(1);Holidays Act 2003 s23(2);Minimum Wage Act 1983;Minimum Wage Act 1983 s6;Minimum Wage Act 1983 s11 |
| Cases Cited | Air New Zealand Ltd v Johnston [1992] 1 ERNZ 700 ; [1992] 1 NZLR 159;Arundell v Flexicon Plastics Ltd unreported, Finnigan J, 27 June 1997, AEC67/97;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808;Trotter v Telecom Corp of New Zealand Ltd [1993] 2 ERNZ 659 |
| Number of Pages | 13 |
| PDF File Link: | 2014_NZERA_Auckland_162.pdf [pdf 258 KB] |