| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 204 |
| Hearing date | 3 Jul 2015 |
| Determination date | 09 July 2015 |
| Member | E Robinson |
| Representation | K Usmar ; No appearance |
| Location | Tauranga |
| Parties | McBeal v Twigley t/a Eastland Legal |
| Summary | UNJUSTFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by late and inaccurate payment of wages and unjustifiably dismissed by respondent – Deductions from wages - COSTS – Applicant sought contribution towards costs - No appearance for respondent – Legal Assistant |
| Abstract | AUTHORITY FOUND - UNJUSTFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent failed to pay applicant on time and in full, although respondent eventually paid. Deductions made without written consent. Employees can reasonably expect to be paid accurately and on time. Unjustified disadvantage. Respondent breached good faith by holding disciplinary meeting, unreasonably refusing to allow applicant’s representative to speak during meeting, inferring applicant deliberately withheld medical information, accusing applicant of lying about medical condition, contacting applicant’s mother and requesting that applicant undergo drug test with good cause. Breach sufficiently serious that applicant’s resignation reasonably foreseeable. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $1786 reimbursement of lost wages. $3,400 compensation appropriate.COSTS: Less than half day investigation meeting. Appropriate to apply notional daily tariff. Respondent to pay applicant $1,500 contribution towards costs. |
| Result | Applications granted ; Reimbursement of lost wages ($1786.46) ; Compensation for humiliation etc ($3,400) ; Costs in favour of applicant ($1,500) ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103(1)(b);ERA s124;ERA s128(2);ERA Second Schedule cl12;Holidays Act 2003 s23;Holidays Act 2003 s61(2) |
| 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);PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC);Wellington, Taranaki and Marlborough Clerical Administration and Related Workers IUOW v Greenwich t/a Becket Employment [1983] ACJ 965 (AC) |
| Number of Pages | 16 |
| PDF File Link: | 2015_NZERA_Auckland_204.pdf [pdf 231 KB] |