| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 147 |
| Hearing date | 16 Sep 2014 |
| Determination date | 17 September 2014 |
| Member | D Appleton |
| Representation | R Reed ; Y Yin |
| Location | Christchurch |
| Parties | Chien and Anor v Sweethearts at Berryfields Ltd |
| Other Parties | Chang |
| Summary | RAISING PERSONAL GRIEVANCE - Whether applicant raised grievances within 90 days -;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Dismissal - Applicants claimed unjustifiably disadvantaged by respondent's actions and unjustifiably dismissed by respondent - Multiple claims of unjustified disadvantage - First applicant claimed dismissed after reminding respondent to pay staff on time - Applicants claimed respondent accused both applicant's of theft and threatened to call police - Respondent claimed dismissal in accordance with 90 day trial period - ARREARS OF HOLIDAY PAY - Applicants sought arrears of holiday pay - Public holidays - General manager and waitress |
| Abstract | AUTHORITY FOUND -;RAISING PERSONAL GRIEVANCE: Claim applicant unjustifiably disadvantaged by requirement to act as interpreter not raised in time. Claim relating to operation of machinery without licence not raised in time. Grievances not raised within 90 days. Other grievances raised in time.;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: First applicant not disadvantaged by requirement to pick up bird droppings or requirement to be work an average of 60 hours per week. First applicant not disadvantaged by request to work on days off. Employment agreement provided tools to complete work would be provided. First applicant unjustifiably disadvantaged by requirement to use own computer for work purposes and requirement to use own car for work purposes. Amount of petrol used for work purposes not specified and Authority did not accept respondent required to reimburse applicant for unspecified petrol use. Allegation of theft serious and no proof to back up allegation. Both applicants unjustifiably disadvantaged by allegation. Second applicant unjustifiably disadvantaged by non provision of employment agreement. No process followed whatsoever in regards to dismissal. No valid trial period. Both dismissals unjustified. REMEDIES: No contributory conduct. Respondent to pay first applicant $10,500 reimbursement of lost wages. $7,000 compensation appropriate for first applicant's unjustified dismissal. $3,000 compensation appropriate for first applicant's unjustified disadvantage. Respondent to pay second applicant $4,816 reimbursement of lost wages. $7,000 compensation appropriate for second applicant's unjustified dismissal. $2,500 compensation appropriate for second applicant's unjustified disadvantage.;ARREARS OF HOLIDAY PAY - Applicants entitled to be paid in accordance with Holidays Act 2003 for public holidays worked. Salaried employment did not prevent requirement. Respondent to pay first applicant $161 arrears of holiday pay. Respondent to pay second applicant $128 arrears of holiday pay. |
| Result | Applications partially successful; Reimbursement of lost wages ($10,500)(first applicant) ($4,816)(second applicant); Compensation for humiliation etc ($10,000)(first applicant) ($9,500)(second applicant); Arrears of holiday pay ($161.52)(first applicant) ($128)(second applicant); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s67A;ERA s67A(2);ERA s67B;ERA s103A;ERA s114;ERA s115;ERA s124;ERA s128;ERA s128(3);Holidays Act 2003 s50 |
| Number of Pages | 25 |
| PDF File Link: | 2014_NZERA_Christchurch_147.pdf [pdf 320 KB] |