| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 442 |
| Hearing date | 1 Sep 2014 |
| Determination date | 29 October 2014 |
| Member | A Fitzgibbon |
| Representation | D Smith (in person) ; K Nguy |
| Location | Auckland |
| Parties | Smith v EZ Step Ltd t/a Pet Stop |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of holiday pay and KiwiSaver – Deduction from final wages – Whether applicant failed to give required notice – Failure to pay employer KiwiSaver contribution – Manager |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant mostly enjoyed work but became increasingly frustrated with some staff during final month. No criticism of respondent’s management in resignation. Resignation not reasonably foreseeable. No course of conduct by respondent with deliberate and dominant purpose of coercing applicant to resign. No breach of duty by respondent leading to applicant’s resignation. No constructive dismissal. In any event, grievance not raised within 90 days.;ARREARS OF WAGES AND HOLIDAY PAY: Parties reached agreement whereby applicant did not have to work out notice period but would still be paid. No written consent by applicant to deductions. Respondent had obligation to make employer KiwiSaver contributions. Respondent to pay applicant $2,769 arrears of holiday pay. Respondent to pay applicant arrears of KiwiSaver, quantum to be determined. Payment to be made to applicant’s KiwiSaver account. |
| Result | Application granted (arrears of wages and holiday pay) ; Arrears of holiday pay ($2,769) ; Arrears of KiwiSaver (quantum to be determined) ; Application dismissed (unjustified dismissal) ; Disbursements in favour of applicant ($71.56)(filing fee) ; No order for costs |
| Main Category | Personal Grievance |
| Statutes | EAR r8(3);EAR r8(4);ERA;ERA s114;ERA s114(1);ERA s131;ERA s159(1)(b);Holidays Act 2003;Wages Protection Act 1983 s4;Wages Protection Act 1983 s5 |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;Wellington, Taranaki and Marlborough Clerical etc IUOW v Greenwich (t/a Greenwich and Associates Employment Agency and Complete Fitness Centre) (1983) ERNZ Sel Cas 95 |
| Number of Pages | 10 |
| PDF File Link: | 2014_NZERA_Auckland_442.pdf [pdf 309 KB] |