| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 239 |
| Hearing date | 20-21 May 2014 |
| Determination date | 17 June 2014 |
| Member | A Fitzgibbon |
| Representation | M Smyth ; M O'Brien, C Piho |
| Location | Auckland |
| Parties | Madani v Cirrotec Ltd |
| Summary | RACIAL HARASSMENT - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Redundancy - Applicant claimed racially harassed by respondent and unjustifiably dismissed by respondent - Whether applicant taunted because Indian - ARREARS OF WAGES - Applicant sought arrears of wages - COUNTERCLAIM - BREACH OF CONTRACT - PENALTY - RESTRAINT OF TRADE - Respondent sought declaration applicant breached employment agreement (EA") and penalty for applicant's breach of EA - Whether breach of confidentiality, fidelity and good faith obligations - Whether applicant established competing business while employed by respondent - Resource manager" |
| Abstract | AUTHORITY FOUND -;RACIAL HARASSMENT - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Respondent's director did not make alleged harassing statements. Applicant's evidence regarding racial harassment unconvincing. No issues regarding racial harassment raised during applicant's employment and, in any event, grievances relating to almost all statements not raised within 90 days. No racial harassment. Respondent entitled to consider applicant's role could not be sustained on economic grounds. No merit to allegation applicant dismissed because of applicant's race rather than respondent's financial circumstances. No mixed or ulterior motives for dismissal of applicant. Respondent determined applicant's position to be disestablished prior to any discussion about disestablishment of position with applicant. Applicant never provided with respondent's financial reports or forecasts to comment on, not told respondent considering reasons for poor financial position and never given opportunity to address respondent on issues affecting financial position and consequences for applicant's employment. Warning that applicant's role in jeopardy entirely inadequate and applicant presented with fait accompli. Respondent breached duty of good faith. Dismissal unjustified. Alternatively, applicant unjustifiably disadvantaged by respondent's actions. REMEDIES: No contributory conduct. $8,500 compensation appropriate.;ARREARS OF WAGES: Contract between respondent and customer not signed until after applicant left employment with respondent. Plain wording of commission scheme clear that commission paid on income received rather than sales closed. Applicant not entitled to commission for particular sale. No arrears of wages.;COUNTERCLAIM - BREACH OF CONTRACT - PENALTY - RESTRAINT OF TRADE: Applicant helped previous colleague set up own website but no damage established. Insufficient evidence e-mailing of product list and link to personal e-mail addresses breach of applicant's obligations of fidelity, confidentiality and good faith. Applicant not in breach of obligations regarding removal of confidential information. Applicant did not solicit consultant engaged by respondent to work for applicant's business as contact initiated by consultant. No evidence of damage arising from applicant's alleged breach of restraint of trade and applicant's business not operating in breach of restraint of trade. No breach of contract. No penalty. |
| Result | Application granted (unjustified disadvantage / unjustified dismissal) ; Compensation for humiliation etc ($8,500) ; Applications dismissed (racial harassment)(arrears of wages)(counterclaim - breach of contract - penalty - restraint of trade) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4;ERA s4(1A);ERA s4(1A)(b);ERA s4(1A)(c);ERA s4(1A)(c)(i);ERA s4(1A)(c)(ii);ERA s103(1)(e);ERA s103A;ERA s109;ERA s124 |
| Cases Cited | G N Hale & Sons Ltd v Wellington etc Caretakers etc IUOW (1990) ERNZ Sel Cas 843 ; [1991] 1 NZLR 151;Jinkinson v Oceana Gold (NZ) Ltd (No 2) (2011) 9 NZELC 93,655;Rittson-Thomas (t/as Totara Hills Farm) v Davidson (2013) 10 NZELR 391;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825;Terson Industries Ltd v Loder (2009) 6 NZELR 345 |
| Number of Pages | 21 |
| PDF File Link: | 2014_NZERA_Auckland_239.pdf [pdf 359 KB] |