| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 382 |
| Hearing date | 28 Aug 2014 |
| Determination date | 15 September 2014 |
| Member | E Robinson |
| Representation | D Organ ; M Nutsford |
| Location | Auckland |
| Parties | Harding v M.S.J. Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Redundancy - Applicant claimed unjustifiably dismissed by respondent - No employment agreement - Poor financial position of respondent - PENALTY - Applicant sought penalty for respondent's failure to pay final wages and holiday pay and for unauthorised deduction from wages - Applicant sought penalty for respondent's failure to provide employment agreement - Carpenter |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Genuine redundancy. No evidence applicant presented with information relating to continuation of employment. Applicant's understanding that he was on extended leave with work resuming in a few months. Decision to make applicant redundant presented as fait accompli. Defects in process not minor and resulted in applicant being treated unfairly as deprived of any opportunity to comment on redundancy. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $8,480 reimbursement of lost wages; $4,000 compensation appropriate. Interest payable.;PENALTY - Non payment due to mistaken understanding that respondent entitled to withhold payment pending agreement on final sum. Respondent received advice and paid outstanding amount in timely manner. Applicant accepted responsibility for purchases made by him. No penalty. Applicant placed in position of uncertainty by non provision of employment agreement. $1,000 penalty appropriate. |
| Result | Applications granted; Reimbursement of lost wages ($8,480); Compensation for humiliation etc ($4,000); Interest (5%); Penalty ($1,000)($750 payable to Crown)($250 payable to applicant); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4;ERA s4(1A)(c);ERA s103A;ERA s103A(5);ERA Second Schedule cl11;Holidays Act 2003 s25;Judicature Act 1908;Judicature (Prescribed Rate of Interest) Order 2011;Wages Protection Act 1983 s4 |
| Cases Cited | Simpsons Farms Ltd v Aberhart [2006] ERNZ 825;Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 13 |
| PDF File Link: | 2014_NZERA_Auckland_382.pdf [pdf 288 KB] |