| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 112 |
| Hearing date | 1 Jul 2015 - 2 Jul 2015 (2 days) |
| Determination date | 05 August 2015 |
| Member | D Appleton |
| Representation | B McDonald ; P Shamy |
| Location | Christchurch |
| Parties | Highley v AJ Operations Ltd t/a Cocopelli |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed unjustifiably disadvantaged by method of dismissal and failure to provide full-time work, and unjustifiably dismissed by respondent – 90 trial period – Summary dismissal – BREACH OF CONTRACT – Applicant sought damages for respondent’s failure to provide full-time work - PENALTY – GOOD FAITH – Applicant sought penalties for breach of EA, breach of statutory duties under Wages Protection Act 1983 and Holidays act 2003 and breach of good faith – Waitress |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: EA stated applicant full-time worker. No evidence of written agreement to variation. Unjustified disadvantage. Respondent summarily dismissed applicant after end of 90 day trial period. Respondent no longer able to rely on warning for poor performance given during trial period. Respondent required to tell applicant of concerns and allow applicant opportunity to comment or improve. Fair and reasonable employer would not have summarily dismissed applicant. Dismissal unjustified. REMEDIES: 25 per cent contributory conduct. Respondent to pay applicant $2,837.60 reimbursement of lost wages. $11,250 compensation appropriate. Interest payable.BREACH OF CONTRACT: Respondent breached EA by failing to provide applicant with full-time work. Damages equivalent to lost income. Respondent to pay applicant $720 damages.PENALTY: Respondent’s breaches not deliberate. No penalty. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal)(breach of contract) ; Contributory conduct (25%) ; Reimbursement of lost wages ($2,837.60) ; Compensation for humiliation etc ($11,250) ; Interest (5%) ; Damages ($720.63) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4A;ERA s103A;ERA s124;ERA s134(1);Holidays Act 2003;Holidays Act 2003 s14;Holidays Act 2003 s23;Holidays Act 2003 s75(1)(b);Holidays Act 2003 s84;Wages Protection Act 1983;Wages Protection Act 1983 s4;Wages Protection Act 1983 s5;Wages Protection Act 1983 s5(1);Wages Protection Act 1983 s6(2);Wages Protection Act 1983 s7;Wages Protection Act 1983 s9;Wages Protection Act 1983 s13(b) |
| Cases Cited | Campbell v Commissioner of Salford School [2015] NZEmpC 122;Hall v Dionex Pty Ltd [2015] NZEmpC 29;Harris v The Warehouse Ltd [2014] NZEmpC 188;Portia Developments Ltd (t/a Silverstone Intercredit NZ) v Taylor EmpC Auckland AEC100/97, 3 June 1997;Sealord Group Ltd v New Zealand Fishing Industry Guild Inc [2005] ERNZ 535 (EmpC);Waitakere City Council v Ioane (No 2) [2006] 2 NZLR 310 (CA) |
| Number of Pages | 29 |
| PDF File Link: | 2015_NZERA_Christchurch_112.pdf [pdf 330 KB] |