| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 195 |
| Hearing date | 10 Apr 2015 |
| Determination date | 29 June 2015 |
| Member | R Arthur |
| Representation | S Greening ; P Muir |
| Location | Auckland |
| Parties | Jarden v NKD Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by suspension and failure to pay applicant, and unjustifiably dismissed by respondent – Deductions from wages - Whether employee casual or permanent part-time – Shop worker |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant usually worked regular hours. Applicant permanent part-time employee. Respondent unable to roster applicant off from further work at will. No express contractual provision authorising suspension. Respondent did not have sufficiently investigated basis that applicant had been overpaid and failed to give applicant opportunity to comment on suspension. Unjustifiable disadvantage. Respondent not in breach of requirement to provide wage and time records at time of resignation as applicant resigned shortly after receiving records. Respondent’s breaches of duty regarding suspension and pay serious and could have caused applicant to resign. However, applicant aware that respondent able to proceed with disciplinary action with possible end result of dismissal and applicant took other job shortly after resigning. Likely that applicant’s resignation premature to avoid disciplinary action. Resignation not caused seriousness of respondent’s breaches. No dismissal. REMEDIES: $2,000 compensation appropriate. |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($2,000) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s6;ERA s103A(5) ;;ERA s174 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union of Workers Inc [1994] 2 NZLR 415 (CA);Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA);Graham v Airways Corporation of New Zealand Ltd [2005] ERNZ 587 (EmpC);Honda NZ Ltd v New Zealand Boilermakers Union [1991] 1 NZLR 392 (CA);Jinkinson v Oceana Gold (NZ) Ltd [2009] ERNZ 225 (EmpC);New Zealand Institute of Fashion Technology v Aitken [2004] 2 ERNZ 340 (EmpC);New Zealand (with exceptions) Shipwrights etc Union v Honda NZ Ltd [1989] 3 NZILR 82 (LC);PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC);Rush Security Services Ltd v Samoa [2011] NZEmpC 76, [2011] ERNZ 529;Singh v Sherildee Holdais Ltd t/a New World Opotiki EmpC Auckland AC53/05, 22 September 2005 |
| Number of Pages | 14 |
| PDF File Link: | 2015_NZERA_Auckland_195.pdf [pdf 333 KB] |