| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 95 |
| Hearing date | 25 Mar 2014 |
| Determination date | 04 July 2014 |
| Member | C Hickey |
| Representation | M Henderson ; D Caddick |
| Parties | Gunning v Blighs Road Service Station (1989) Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Poor Performance - Applicant claimed unjustifiably disadvantaged by respondent's actions and unjustifiably dismissed by respondent - Whether applicant bullied, intimidated, spoken to in aggressive manner and humiliated - Whether valid trial period provision - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages, holiday pay and KiwiSaver - Whether respondent entitled to withhold applicant's wages due to applicant's failure to work notice period - PENALTY - Applicant sought penalty for respondent's failure to provide copy of employment agreement (EA") and breach of Wages Protection Act 1983" |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Even if respondent's director (C") directed fairly robust criticism at applicant concerning lights on forecourt, applicant's employment not affected to disadvantage apart from embarrassment any employee may feel when corrected in front of others. C's words did not amount to bullying. Instructing staff to go back to forecourt before someone was fired made applicant believe employment less secure. Applicant unjustifiably disadvantaged by being told to perform task before respondent fired someone. C's comments regarding applicant's covering of firewood comments that fair and reasonable employer could make in all circumstances and alleged comment by C that wondered if applicant suitable to open and close service station C's honestly held opinion. Comment by C that situation "gets worse and worse with you" made applicant feel as if employment less secure and should not have been voiced out loud in front of co-worker. Applicant unjustifiably disadvantaged by C's comment. Applicant already employee when signed EA. Applicant not provided with reasonable opportunity to seek independent advice about intended agreement when offer of employment made in afternoon of day before applicant expected to commence work. No valid trial period provision. Effectively no process followed at all by respondent. Dismissal unjustified. REMEDIES: No contributory conduct. Appropriate to award holiday pay and KiwiSaver as part of lost wages. Respondent to pay applicant $6,060 reimbursement of lost wages. $6,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant did not abandon employment under EA. Respondent not entitled to withhold wages already earned by applicant and not reasonable for respondent to prevent applicant working notice period. Respondent not entitled to withhold wages and holiday pay purely because applicant invoked procedures for resolving employment relationship problems. Applicant entitled to be paid wages earned and for notice period. Applicant entitled to be paid holiday pay on all wages paid already. Respondent to pay applicant arrears of wages, holiday pay and KiwiSaver, quantum to be determined. Interest payable. Leave reserved for parties to return to Authority to quantify amounts.;PENALTY: Not proved that respondent failed to provide copy of EA as soon as reasonably practicable after request. Document provided not copy of original agreement but respondent's failure due to failure to understand importance of not altering document after signed by employee and no penalty appropriate. Respondent breached Wages Protection Act 1983 by making deductions from applicant's wages without consent and penalty warranted to deter other employers. $1,000 penalty appropriate." |
| Result | Applications granted ; Arrears of wages (quantum to be determined) ; Arrears of holiday pay (quantum to be determined) ; Arrears of KiwiSaver (quantum to be determined) ; Interest (5%) ; Reimbursement of lost wages ($6,060.60) ; Compensation for humiliation etc ($6,000) ; Penalty ($1,000)(payable to Crown) ; No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s63A(2);ERA s64(3);ERA s67A;ERA s67B;ERA s67B(1);ERA s67B(2);ERA s67B(3);ERA s103(1)(b);ERA s103(1)(c);ERA s103(1)(d);ERA s103(1)(e);ERA s103(1)(f);ERA s103(1)(g);ERA s103A;ERA s103A(3);ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s124;ERA s128(2);ERA s128(3);ERA s135;ERA s174;ERA Second Schedule cl11;Judicature Act 1908;Wages Protection Act 1983;Wages Protection Act 1983 s4;Wages Protection Act 1983 s5;Wages Protection Act 1983 s5(2);Wages Protection Act 1983 s13 |
| Cases Cited | Blackmore v Honick Properties Ltd [2011] ERNZ 445;Smith v Stokes Valley Pharmacy (2009) Ltd [2010] ERNZ 253;Tan v Yang [2014] NZEmpC 65;Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 20 |
| PDF File Link: | 2014_NZERA_Christchurch_95.pdf [pdf 304 KB] |