| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 494 |
| Hearing date | 22 Sep 2014 |
| Determination date | 03 December 2014 |
| Member | R Arthur |
| Representation | S Greening, N Tetzlaff ; J Armstrong |
| Location | Auckland |
| Parties | Hart v Printlounge Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Pre-employment misrepresentation – Failure to disclose murder conviction – ARREARS OF WAGES – Applicant sought arrears of wages – Whether applicant entitled to notice |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Probable that respondent would ask if applicant had any further convictions after applicant disclosed assault conviction during job interview. Probable that applicant would answer “no” when asked if had any other convictions. Applicant told respondent during subsequent conversation that respondent wouldn’t have employed applicant if applicant had told truth. Applicant gave respondent impression that previous assault conviction one-off which, combined with applicant’s assurance that did not have other convictions, induced respondent to enter employment agreement. Objective observer would consider from respondent’s question about other convictions and time taken by respondent to consider offering applicant job that truth of applicant’s statements impliedly agreed as fundamental to job offer. Respondent entitled to cancel employment agreement under Contractual Remedies Act 1979. Arguable that applicant’s misrepresentation also either decreased benefit of employment agreement or increased burden on respondent. Applicant given no notice of meeting or right to bring support person and dismissed summarily. Dismissal unjustified. REMEDIES: 100 per cent contributory conduct.;ARREARS OF WAGES: Provision in applicant’s employment agreement providing for termination ‘for cause’ arguably express provision for remedy for misrepresentation. Applicant should have been paid one week’s notice. No order to be made pending resolution of any costs issues. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (100%) ; Application reserved (arrears of wages) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Contractual Remedies Act 1979;Contractual Remedies Act 1979 s5;Contractual Remedies Act 1979 s7;Contractual Remedies Act 1979 s7(3);Contractual Remedies Act 1979 s7(3)(a);Contractual Remedies Act 1979 s7(4);Contractual Remedies Act 1979 s7(4)(b);Contractual Remedies Act 1979 s8(3)(a);ERA s4;ERA s103A;ERA s103A(2);ERA s124;ERA s174 |
| Cases Cited | Murray v Attorney-General in respect of the Chief Executive of the Inland Revenue Department [2002] 1 ERNZ 184;Salad Bowl Ltd v Howe-Thornley [2013] ERNZ 326;Skywards Catering Ltd (t/a Wings Bar and Restaurant) v Apthorp-Hall [1995] 2 ERNZ 218;Tai v Robinson, (t/a Coronation Lodge Rest Home) [2004] 1 ERNZ 270;Waitakere City Council v Ioane [2005] ERNZ 1043 ; [2006] 2 NZLR 310 |
| Number of Pages | 12 |
| PDF File Link: | 2014_NZERA_Auckland_494.pdf [pdf 395 KB] |