| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 93 |
| Hearing date | 23 Feb 2015 |
| Determination date | 26 March 2015 |
| Member | R Larmer |
| Representation | K Ngati ; T McGinn |
| Location | Taupo |
| Parties | Waru v Metallic Sweeping (1998) Ltd |
| Summary | ARREARS OF WAGES - Applicant sought arrears of wages and arrears of Kiwisaver - Whether total remuneration approach to Kiwisaver agreed between parties - UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant claimed unjustifiably dismissed by respondent - Triangular employment - Third party alleged complaints received about applicant - Applicant directed recyclable bottles to refuse pit and accordingly no fee charged for dumping bottles - Breach of obligation to third party to collect fees - Multiple allegations of misconduct - Whether respondent's relationship with third party at risk due to actions of applicant |
| Abstract | AUTHORITY FOUND -ARREARS OF WAGES: Kiwisaver provision added after applicant signed employment agreement. Provision variation to terms already agreed. Provision not result of good faith bargaining. No mutual agreement between parties. Respondent to pay applicant $690 arrears of wages and $19 arrears of Kiwisaver.;UNJUSTIFIED DISMISSAL: No information relating to disciplinary concerns provided to applicant. Limited investigation into alleged complaints. Potential for respondent's relationship with third party to be adversely affected not supported by evidence. Failure to direct recycling and collect fee not serious misconduct. Respondent's procedures not clear. Other allegations not established. Dismissal substantially and procedurally unjustified. Dismissal unjustified. REMEDIES: Reimbursement figure inclusive of kiwisaver and holiday pay. Respondent to pay applicant $6,893 reimbursement of lost wages. $3,500 compensation appropriate. |
| Result | Applications granted; Arrears of wages ($690); Arrears of Kiwisaver ($19.86); Reimbursement of lost wages ($6,893.10); Compensation for humiliation etc ($3,500); Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s4(1);ERA s103A;ERA s103A(2);ERA s103A(3);ERA s103A(3)(c);ERA s103A(3)(d);ERA s128(2);KiwiSaver Act 2006;KiwiSaver Act 2006 s63A(2);KiwiSaver Act 2006 s101B(1) |
| Number of Pages | 16 |
| PDF File Link: | 2015_NZERA_Auckland_93.pdf [pdf 248 KB] |