| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2015] NZERA Wellington 75 |
| Hearing date | 12 Mar 2015 - 30 Mar 2015 (2 days) |
| Determination date | 10 August 2015 |
| Member | M Ryan |
| Representation | A Lyons ; P Mitchell |
| Location | Wellington |
| Parties | Dewes v Map Upper Hutt Ltd t/a Autor Super Shoppe Maidstone |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – ARREARS OF WAGES – Applicant sought arrears of wages – Deductions from wages - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – PENALTY – Applicant sought penalties for respondent’s failure to keep wage and time records, failure to provide paid afternoon breaks, failure to pay wages and deductions from wages - Mechanic |
| Abstract | AUTHORITY FOUND –RAISING PERSONAL GRIEVANCE: Applicant did not satisfactorily raise grievance regarding KiwiSaver contributions. Grievance not raised within 90 days.ARREARS OF WAGES: Respondent failed to keep wage and time records, or provide other evidence regarding applicant’s claim. Respondent underpaid applicant during employment. Respondent did not fully meet outstanding arrears when paying out applicant at termination of employment. Respondent made deductions from applicant’s final pay without applicant’s written consent. Respondent to pay applicant arrears of wages, quantum to be determined. Interest payable.UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Applicant unjustifiably disadvantaged by respondent’s failure to pay wages. Respondent struggling financially and had genuine grounds for undertaking restructuring. Respondent failed to consider other employees fairly in selection process and did not take applicant’s undertaking to work more hours into account. No evidence that respondent took applicant’s grievance into account when making selection. Respondent failed to communicate all reasons for selection to applicant, so applicant did not get proper opportunity to comment. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $7,000 compensation appropriate.PENALTY: Respondent’s breaches not deliberate and respondent tried to resolve issues with applicant. No penalty. |
| Result | Applications granted (arrears of wages)(unjustified disadvantage)(unjustified dismissal) ; Arrears of wages (quantum to be determined) ; Interest (5%) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($7,000) ; Applications dismissed (raising personal grievance)(penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s50;ERA s69ZD;ERA s69ZB(4);ERA s103A;ERA s124;KiwiSaver Act 2006 s101B(4);KiwiSaver Act 2006 s101B(4)(a);KiwiSaver Act 2006 s101B(4)(b);Wages Protection Act 1983 s5;Judicature Act 1908 s87(3) |
| Cases Cited | Apiata v Telecom NZ Ltd [1998] 2 ERNZ 130 (EmpC);Rainbow Falls Organic Farm Ltd v Rockwell [2014] NZEmpC 136;Tan v Yang [2014] NZEmpC 65;Xu v McIntosh [2004] 2 ERNZ 448 (EmpC) |
| Number of Pages | 15 |
| PDF File Link: | 2015_NZERA_Wellington_75.pdf [pdf 262 KB] |