| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 241 |
| Hearing date | 19 May 2014 |
| Determination date | 17 June 2014 |
| Member | R Larmer |
| Representation | M Nutsford ; R Harris |
| Location | Tauranga |
| Parties | Lyttle v RYH Contracting Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Dismissal - Applicant claimed unjustifiably dismissed by respondent - Whether applicant dismissed or resigned without notice - Back injury - ACC - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - Deduction from wages - Whether applicant did not work hours claimed on timesheet - Whether applicant failed to give appropriate notice - Whether applicant failed to return equipment - Operator / labourer |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Respondent's managing director failed to register or dismissed ACC paperwork received from applicant. Applicant not told would loose two weeks' pay for not giving notice. Applicant advised respondent had been signed off work for two weeks and leaving that day. Respondent jumped gun by unreasonably and inappropriately concluding applicant had resigned. Even if respondent formed genuine view applicant had resigned, circumstances of apparent resignation warranted further discussion or investigation. Respondent failed to pay applicant and failed to address applicant's subsequent claims had not resigned. Applicant dismissed. Respondent's failure to comply with statutory obligations fundamentally undermined ability to justify dismissal. Respondent breached duty of good faith by not providing applicant with information before dismissal. Respondent did not follow any process at all. Dismissal unjustified. REMEDIES: No contributory conduct. $5,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: No clause in applicant's employment agreement (EA") allowing deductions from wages and no consent to any deduction given. No notice of deductions or information about deductions given. Evidence did not establish applicant did not work all hours claimed on timesheet and issue not raised with applicant at time. Even if applicant resigned, no provision in EA for forfeiture of wages if applicant did not give sufficient notice and respondent not entitled to withhold final week's wages. Respondent withheld applicant's holiday pay unlawfully. Applicant returned gear and, in any event, no contractual right for respondent to withhold money from applicant's wages. Respondent to pay applicant $873 arrears of wages and $349 arrears of holiday pay." |
| Result | Applications granted ; Compensation for humiliation etc ($5,000) ; Arrears of wages ($873.49) ; Arrears of holiday pay ($349.76) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s103A;ERA s103A(2);ERA s103A(3) |
| Number of Pages | 12 |
| PDF File Link: | 2014_NZERA_Auckland_241.pdf [pdf 229 KB] |