| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 224 |
| Hearing date | 28 Apr 2014 |
| Determination date | 09 June 2014 |
| Member | J Crichton |
| Representation | L Darroch ; A Kutti (in person) |
| Location | Auckland |
| Parties | Hamilton v Kutti |
| Summary | UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Dismissal - Applicant claimed unjustifiably disadvantaged by respondents actions and unjustifiably dismissed by respondent - Allegations of drug use - Alleged customer complaints regarding smell of cigarette smoke - Failure to pay wages - No time and wage records - Applicant paid at end of each shift - Haphazard payments - On occasion applicant paid commission only - Applicant enquired about wage payment and respondent became angry, threw money at applicant and told applicant to leave - Applicant frightened by respondent's angry outburst - Respondent claimed concerns over applicants performance - SEXUAL HARASSMENT - RACIAL HARASSMENT - Applicant claimed sexually and racially harassed by respondent - Sexual orientation - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - Whether applicant causal employee - Respondent refused applicant's entitlement to sick leave and bereavement leave - No notice period - Barber |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Respondent failed to follow any proper disciplinary or performance inquiry. Dismissal one of many dismissals throughout employment relationship. Applicant sent away by respondent. Respondent's anger disproportionate to any initiation by applicant. Dismissal unjustified. Inadequacy of record keeping and absolute failure to pay statutory wage entitlements so egregious. Applicant unjustifiably disadvantaged by respondents actions. REMEDIES: No contributory conduct. Respondent to pay applicant $2,500 reimbursement of lost wages. $3,500 compensation appropriate for unjustified dismissal. $2,500 compensation appropriate for unjustified disadvantage.;SEXUAL HARASSMENT - RACIAL HARASSMENT: Respondent's evidence preferred. Although uncomfortable and unhappy employment relationship no evidence of harassment of any kind. No sexual or racial harassment.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant not casual employee. Applicant entitled to holiday pay, sick leave and bereavement leave. Respondent required to top up wages if commission did not amount to minimum wage. Respondent to pay applicant $7720 arrears of wages and holiday pay. Leave reserved for parties to approach Authority regarding IRD tax payments, KiwiSaver and penalties. |
| Result | Applications granted (unjustified disadvantage - unjustified dismissal)(arrears of wages and holiday pay); Reimbursement of lost wages ($2,500) Compensation for humiliation etc ($3,500)(unjustified dismissal) ($2,500) (unjustified disadvantage); Arrears of wages and holiday pay ($7,720); Applications dismissed (sexual harassment - racial harassment); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124;ERA s128;ERA s130;Holidays Act 2003 s81;Wages Protection Act 1983 s4 |
| Cases Cited | Goodfellow v Building Connexion Ltd t/a ITM Building Centre [2010] NZEmpC 82;Jinkinson v Oceana Gold (NZ) Ltd [2009] ERNZ 225 |
| Number of Pages | 17 |
| PDF File Link: | 2014_NZERA_Auckland_224.pdf [pdf 196 KB] |