| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 216 |
| Hearing date | 12 Dec 2014 |
| Determination date | 24 December 2014 |
| Member | D Appleton |
| Representation | L Acland ; P Smith |
| Location | Nelson |
| Parties | Kerr v Croisilles Oysters Ltd |
| Summary | ARREARS OF HOLIDAY PAY - Applicant sought arrears of holiday pay - Whether applicant entitled to be paid for public holidays falling during closedown period - BREACH OF CONTRACT - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought damages for respondent's breach of employment agreement (EA") in relation to closedown period - Christmas / New Year closedown period - Seasonal employer - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Constructive Dismissal - Applicant claimed unjustifiably disadvantaged by respondent's actions and unjustifiably dismissed by respondent - Oyster opener" |
| Abstract | AUTHORITY FOUND -;ARREARS OF HOLIDAY PAY: Relevant that applicant sought advice from Labour Inspector. Applicant's EA envisaged situation where no work to be done through declaration of No Work Day". Respondent did not openly or formally declare any No Work Days during closedown period. Applicant's work pattern entailed, potentially, days on which no work was available and applicant therefore not entitled to be paid. Applicant worked for respondent only when work available. Applicant did not have reasonable expectation of working on public holidays given no oysters or mussels available for processing. Public holidays not otherwise working days for applicant. No arrears of holiday pay.;BREACH OF CONTRACT - ARREARS OF WAGES AND HOLIDAY PAY: Definition of "customarily" strongly suggested respondent could not have closedown period during first year of operation. Closedown period did not meet requirements of Holidays Act 2003. Extended closedown period of 52 days breached terms of EA as could not be said to be "approximately two weeks". No work available during closedown period but respondent did not declare any No Work Days under EA. Applicant entitled to be paid for period of closedown excluding public holidays. Applicant's EA did not allow respondent to fail to provide applicant with work when available, or to favour other employees in provision of work on basis that other employees had more seniority. Failure to call applicant to work once closedown period ended breach of applicant's EA. Respondent to pay applicant $3,248 damages in respect of arrears of wages and $259 damages in respect of arrears of holiday pay.;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Applicant unjustifiably disadvantaged by being told that EA null and void. Applicant unjustifiably disadvantaged by being told respondent not employing people anymore after applicant asked about position. Misleading to tell applicant that needed to sign variation to EA. Applicant unjustifiably disadvantaged by being told to sign variation to EA with implication that applicant would not be allowed to return otherwise. Extension of closedown period breached EA and communication between parties insufficient. Applicant unjustifiably disadvantaged by not being kept informed properly as to when applicant would be able to resume work. Combination of events over relatively short period of time amounted to fundamental breach of applicant's EA. Applicant's resignation reasonably foreseeable. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. Holiday pay payable on lost wages. Applicant entitled to apply to Authority for assistance in fixing sum in absence of agreement between parties. $7,000 compensation appropriate. Authority recommended respondent review EAs to ensure more suitable terms in place for seasonal employees." |
| Result | Applications granted (breach of contract - arrears of wages and holiday pay)(unjustified disadvantage)(unjustified dismissal) ; Damages ($3,507.84) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($7,000) ; Recommendation ; Application dismissed (arrears of holiday pay) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1);ERA s4(1A);ERA s103A(1);ERA s103A(2);ERA s124;ERA s128;ERA s128(2);ERA s128(3);ERA s160(2);Holidays Act 2003;Holidays Act 2003 s12;Holidays Act 2003 s12(2);Holidays Act 2003 s12(3);Holidays Act 2003 s12(3A);Holidays Act 2003 s13;Holidays Act 2003 s29;Holidays Act 2003 s32(3);Holidays Act 2003 s34;Holidays Act 2003 s46;Holidays Act 2003 s48;Holidays Act 2003 s49;Wages Protection Act 1983 s4;Wages Protection Act 1983 s5;Wages Protection Act 1983 s5(1);Wages Protection Act 1983 s6(2) |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;Commissioner of Police v Hawkins [2009] 3 NZLR 381;Lewis v Motorworld Garages Ltd [1986] ICR 157;Review Publishing Co Ltd v Walker [1996] 2 ERNZ 407;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;Weston v Advkit Para Legal Services Ltd (2010) 8 NZELR 604 |
| Number of Pages | 28 |
| PDF File Link: | 2014_NZERA_Christchurch_216.pdf [pdf 315 KB] |