| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 372 |
| Hearing date | 18 Jul 2014 |
| Determination date | 05 September 2014 |
| Member | T G Tetitaha |
| Representation | C Sagapolutele ; J Gandy |
| Location | Auckland |
| Parties | Ta'ateo v Fewtrell t/a Sheryl's Car Valet |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Whether refusal to follow instruction - Whether applicant resigned - Whether applicant abandoned employment - Altercation - English as second language - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - Whether applicant paid below minimum wage - No wage and time records - Car groomer |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: No notice of resignation given in writing as required by employment agreement. Applicant not given permission to leave premises and actions could have given impression applicant resigning. Respondent could not ignore subsequent evidence that applicant did not resign. No resignation. No disobedience of instruction given by respondent's partner. Applicant's conduct on subsequent day not serious enough for action to be taken. Parties engaged in subsequent argument which may have become abusive. Altercation took place within short but intense period of time and applicant's behaviour did not constitute harassment given lack of pattern or previous similar behaviour. Applicant's one-off refusal to follow instruction not serious and repeated failures required by employment agreement. Applicant did not abandon employment. No process leading up to dismissal. Dismissal unjustified. REMEDIES: 50 per cent contributory conduct. Respondent to pay applicant $600 reimbursement of lost wages. $500 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant paid below minimum wage. Appropriate to deduct amount of loan to applicant from quantum of outstanding wages. Respondent to pay applicant $3,491 arrears of wages and $86 arrears of holiday pay. |
| Result | Applications granted ; Contributory conduct (50%) ; Reimbursement of lost wages ($600) ; Compensation for humiliation etc ($500) ; Arrears of wages ($3,491.24) ; Arrears of holiday pay ($86) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124;ERA s128;ERA s128(1)(b);ERA s128(2);ERA s131;ERA s142;Harassment Act 1997 s3 |
| Cases Cited | Carter Holt Harvey Ltd v Yukich [2005] ERNZ 300;Finau v Carter Holt Building Supplies [1993] 2 ERNZ 971;Goodfellow v Building Connexion Ltd t/a ITM Building Centre [2010] NZEmpC 82 |
| Number of Pages | 13 |
| PDF File Link: | 2014_NZERA_Auckland_372.pdf [pdf 258 KB] |