| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 130 |
| Hearing date | 16 Mar 2015 |
| Determination date | 08 May 2015 |
| Member | V Campbell |
| Representation | P Pau ; P Wicks |
| Location | Auckland |
| Parties | Bhikoo v Stephen Marr Hair Design Newmarket Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent - RESTRAINT OF TRADE – Applicant sought declaration restraint of trade clause unenforceable – PENALTY - GOOD FAITH - Applicant sought penalty for respondent’s failure to provide employment agreement (“EA”) and breach of good faith – Salon manager |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISMISSAL: Fair and reasonable employer could have concluded that applicant committed serious misconduct by walking off job, making announcement about intention to set up own salon to other employees and inappropriate use of company credit card. Respondent engaged impartial decision maker, undertook fair investigation and allowed applicant opportunity to comment. Applicant failed to comment so respondent unable to consider explanations. Dismissal justified.RESTRAINT OF TRADE: Clause not contained in EA so no jurisdiction to consider claim.PENALTY- GOOD FAITH: Respondent did not breach good faith obligations. Respondent breached statutory duty by failing to provide EA but applicant should have commenced action earlier. No penalty. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s103A(2);ERA s103A(3);ERA s103A(5);ERA s174 |
| Cases Cited | Angus v Ports of Auckland Ltd [2011] NZEmpC 160, [2011] ERNZ 466;BDM Grange v Parker [2006] 1 NZLR 353 (HC);Harris v The Warehouse Ltd [2014] NZEmpC 188 |
| Number of Pages | 13 |
| PDF File Link: | 2015_NZERA_Auckland_130.pdf [pdf 234 KB] |