| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 328 |
| Hearing date | 4 Apr 2014 |
| Determination date | 05 August 2014 |
| Member | R Arthur |
| Representation | R Mark ; L Penney |
| Parties | Anania v Ngati Rangi Development Society Inc |
| Summary | UNJUSTIFIED DISMISSAL - Dismissal - Applicant claimed unjustifiably dismissed by respondent - Applicant banned from client's worksite after drink driving conviction - Whether employment continued on suspended and unpaid basis, or ended by frustration, or ended by respondent's actions - Triangular employment - Applicant paid annual leave while respondent determined outcome - ARREARS OF HOLIDAY PAY - Applicant sought arrears of holiday pay - Applicant paid holiday pay while respondent reached decision on employment - Kaitiaki Relationship Manager |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Respondent not entitled to treat period as annual leave. Respondent suspended applicant. Suspension should have been on pay in absence of express contractual provision to contrary. No frustration. Employment ended as no work and no pay. Hope that employment could resume in future after ban lifted but no continuing employment. Applicant dismissed. Respondent active and constructive in requesting client change decision on ban. However respondent fell below standard of what fair and reasonable employer could have done as it failed to adequately communicate with applicant effect of decisions on employment. No proper opportunity to be heard before dismissal. Dismissal unjustified. REMEDIES: One third contributory conduct. No reimbursement of lost wages as employment likely to have ended even if respondent followed correct process. $3000 compensation appropriate.;ARREARS OF HOLIDAY PAY - Respondent not entitled to treat suspension as period of annual leave. Respondent to pay applicant arrears of holiday pay, quantum to be determined. Interest payable. |
| Result | Applications granted; Contributory conduct (one third); Compensation for humiliation etc ($3000); Arrears of holiday pay (quantum to be determined); Interest (5%); No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s103A;ERA s174;ERA Second Schedule cl11 |
| Cases Cited | Allen v Transpacific Industries Group Ltd (t/as Medismart Ltd) (2009) 6 NZELR 530;A Worker v A Farmer [2010] ERNZ 407;FC Shepherd & Co Ltd v Jerrom [1986] 3 All ER 589;G & H Trade Training v Crewther [2002] 1 ERNZ 513;Hill v Workforce Development Ltd [2013] NZERA Wellington 65;Karelrybflot AO v Udovenko [2000] 2 NZLR 24;Paal Wilson & Co. A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] 1 ERNZ 808;Singh v Sherildee Holdings Ltd t/a New World Opotiki unreported, Couch J, 22 September 2005, AC53/05;Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315 |
| Number of Pages | 16 |
| PDF File Link: | 2014_NZERA_Auckland_328.pdf [pdf 275 KB] |