| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 131 |
| Hearing date | 6 - 7 May 2014 |
| Determination date | 28 August 2014 |
| Member | M B Loftus |
| Representation | D Kilpatrick ; H Matthews |
| Location | Christchurch |
| Parties | Singh v Donut Inc Ltd t/a Little India Merivale |
| Summary | UNJUSTIFIED DISMISSAL - Redundancy - Applicant claimed unjustifiably dismissed by respondent - Respondent operated two restaurants - One restaurant closed after Christchurch earthquakes and only later confirmed it would not reopen - Whether selection process efficient and whether redundancy explained to applicant - Applicant and other employees refused to engage in process - ARREARS OF HOLIDAY PAY - Applicant sought $51,426 arrears of holiday pay - Applicant took extended periods of leave during employment to visit family in India - Arrears claim related to annual leave entitlements and public holidays worked - COUNTERCLAIM - RECOVERY OF MONIES - Respondent sought $10,000 recovery of monies loaned to applicant - Chef |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Respondent tried to meet its obligations but efforts stymied by employee's failure to engage meaningfully. Applicant had opportunity to influence process but did not do so. Redundancy substantively justified. Process fair and reasonable. No unjustified dismissal.;ARREARS OF HOLIDAY PAY: Time and wage records not available as destroyed in Earthquake. Money paid to applicant but not in accordance with requirements of Holidays Act 2003. Applicant's evidence inadequate in respect to part of claim. Residue of claim remained as lack of records meant no evidence of payments or that payments identifiable as holiday pay. Applicant entitled to payment for public holidays. Case where probable applicant paid in part but failure to meet requirements of Holidays Act 2003 .Respondent to pay applicant $29,224 arrears of holiday pay.;COUNTERCLAIM - RECOVERY OF MONIES: Applicant to pay respondent $10,000 recovery of monies. Amount to be offset against arrears of holiday pay. |
| Result | Application granted (arrears of holiday pay)(counterclaim - recovery of monies); Arrears of holiday pay ($29,224.26); Recovery of monies ($10,000); Application dismissed (unjustified dismissal); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s103A;ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);Holidays Act 2003 s28(1);Holidays Act 2003 s28(1)(c);Holidays Act 2003 s28(4) |
| Cases Cited | Burns v Radio Pacific Ltd [1998] 3 ERNZ 559;Coutts Cars Ltd v Baguley [2001] ERNZ 660 ; [2002] 2 NZLR 533;Drake Personnel (New Zealand) Ltd v Taylor [1996] 1 ERNZ 324 ; [1996] 2 NZLR 644;Jinkinson v Oceania Gold (NZ) Ltd (No 2) [2010] NZEmpC 102 |
| Number of Pages | 10 |
| PDF File Link: | 2014_NZERA_Christchurch_131.pdf [pdf 192 KB] |