| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 118 |
| Hearing date | 8 Apr 2015 |
| Determination date | 23 April 2015 |
| Member | V Campbell |
| Representation | R Bryant ; Respondent (no appearance) |
| Parties | Stojkov v Bela Ltd |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - RAISING PERSONAL GRIEVANCE - Whether respondent gave implied consent to grievance being raised out of time - UNJUSTIFIED DISMISSAL - Constructive Dismissal - Applicant claimed unjustifiably dismissed by respondent - Migrant worker - Whether applicant subjected to abuse and not provided with statutory entitlement to rest and meal breaks - Swearing - PENALTY - GOOD FAITH - Applicant sought penalty for respondent's breach of good faith, breach of employment agreement (EA") and failure to provide rest and meal breaks - No appearance for respondent - Chef" |
| Abstract | AUTHORITY FOUND -;ARREARS OF WAGES AND HOLIDAY PAY: Applicant not paid for all hours worked. Applicant not paid correctly for working on public holidays and not provided with alternative holidays. Applicant did not receive correct payment for annual holidays. Respondent to pay applicant $14,655 arrears of wages. Respondent to pay applicant $1,155 arrears of wages and holiday pay. Respondent to pay applicant $2,538 arrears of holiday pay.;RAISING PERSONAL GRIEVANCE: No evidence in any of respondent's written responses or when parties agreed to attend mediation that respondent objected to grievance being raised out of time. Respondent gave implied consent to grievance being raised out of time.;UNJUSTIFIED DISMISSAL: Applicant gave compelling evidence of being subjected to abusive behaviour during employment. Manner of applicant's treatment, failure to pay applicant correctly including for public holidays, failure to provide rest and meal breaks and requirement for applicant to work seven days every week amounted to breach of duty. Breaches sufficiently serious to make resignation reasonably foreseeable. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $11,067 reimbursement of lost wages. $7,500 compensation appropriate.;PENALTY - GOOD FAITH: Respondent not active and constructive in maintaining productive employment relationship and breached obligation of good faith. Breaches deliberate, sustained and intended to undermine employment relationship. Respondent breached EA by failing to pay public holiday pay in accordance with Holidays Act 2003. Respondent did not breach fixed term provision of EA given provision did not comply with Employment Relations Act 2000. Respondent breached EA by not paying applicant correct rate for every hour worked. Payment of applicant's wages in cash breached Wages Protection Act 1983 given applicant's written consent to receive wages by direct credit or cheque. Respondent failed to address applicant's concerns when raised. Applicant vulnerable as immigrant on visa relating directly to employment with respondent. $3,000 penalty for breach of good faith, $3,000 penalty for breach of EA and $3,000 penalty for failure to provide rest and meal breaks appropriate. |
| Result | Applications granted ; Arrears of wages ($14,655.11) ; Arrears of wages and holiday pay ($1,155.39) ; Arrears of holiday pay ($2,538) ; Reimbursement of lost wages ($11,067.94) ; Compensation for humiliation etc ($7,500) ; Penalty ($4,500)(payable to applicant)($4,500)(payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s66;ERA s69ZD;ERA s69ZF;ERA s128;ERA s130;ERA s135;ERA s136(2);ERA s160(3);ERA s174;ERA Second Schedule cl12;Holidays Act 2003;Wages Protection Act 1983;Wages Protection Act 1983 s7;Wages Protection Act 1983 s9 |
| Cases Cited | Allen v Transpacific Industries Group Ltd (t/as Medismart Ltd) (2009) 6 NZELR 530 (EmpC);Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union of Workers (Inc) [1994] 2 NZLR 415 (CA);Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA);Carter Holt Harvey Ltd v Yukich [2005] ERNZ 300 (CA);Commissioner of Police v Hawkins [2009] NZCA 209, [2009] 3 NZLR 381;Finau v Carter Holt Building Supplies [1993] 2 ERNZ 971 (EmpC);Greenslade v Jetstar Airways Ltd [2014] NZEmpC 23, (2014) 11 NZELR 332;Tan v Yang [2014] NZEmpC 65;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 (AC);Z v A [1993] 2 ERNZ 469 (EmpC) |
| Number of Pages | 16 |
| PDF File Link: | 2015_NZERA_Auckland_118.pdf [pdf 203 KB] |