| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2015] NZERA Wellington 42 |
| Hearing date | 1 Apr 2015 |
| Determination date | 21 April 2015 |
| Member | M Ryan |
| Representation | G Ogilvie ; K Chapman |
| Parties | Kerse, Wright v Cook Straight Distributors Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicants claimed unjustifiably disadvantaged by respondent’s decision to reduce hours – UNJUSTIFIED DISMISSAL - BARGAINING – Determination of preliminary issue – 90 day trial period – Whether applicants given reasonable opportunity to seek legal advice about employment agreements (“EA”) – PENALTY – BREACH OF CONTRACT – Applicants sought penalties for respondent’s breach of EA and failure to provide wage and time records |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISADVANTAGE: Applicants notified respondents of difficulties with allocated shifts. First applicant asked for different shift but had hours reduced instead. Second applicant removed from roster. EA provided for respondent to change applicants’ hours of work if required for business reasons but consultation with applicants needed. Respondent failed to consult with applicants before reducing applicants’ hours unilaterally. Applicants unjustifiably disadvantaged by respondents’ breach of EA. REMEDIES: No contributory conduct. Respondent to pay first applicant $2,000 reimbursement of lost wages and compensation for loss of benefit and second applicant $2,000 reimbursement of lost wages and compensation for loss of benefit .UNJUSTIFIED DISMISSAL - BARGAINING: Respondent gave applicants EAs and told applicants to sign and return them same day. Applicants unable to negotiate extension of deadline. No reasonable opportunity to seek advice. Applicants signed declaration stating had been given opportunity to seek advice, but clause not reliable since statements did not reflect circumstances of applicants. Bargaining conducted unfairly. Parties directed to mediation regarding substantive unjustified dismissal clause.PENALTY – BREACH OF CONTRACT: Claim regarding breach of EA too uncertain. Respondent failed to provide adequate evidence that satisfied statutory obligations regarding records. Omission not deliberate or blameworthy enough to justify penalty. No penalty. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal-bargaining) ; Reimbursement of lost wages and compensation for loss of benefit ($2,000) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s63A;ERA s63A(2);ERA s63A(2)(c);ERA s69(1)(b);ERA s130;ERA s164;ERA s164(a)(i) |
| Cases Cited | Blackmore v Honick Properties Ltd [2011] NZEmpC 152, [2011] ERNZ 445;Communication & Energy Workers Union Inc v Telecom New Zealand Ltd [1993] 2 ERNZ 429 (EmpC);Wellington International Airport Ltd v Air New Zealand Ltd [1993] 1 NZLR 671 (CA) |
| Number of Pages | 12 |
| PDF File Link: | 2015_NZERA_Wellington_42.pdf [pdf 254 KB] |