| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 232 |
| Determination date | 05 August 2015 |
| Member | Robin Arthur |
| Representation | R Ingram ; R Aylwin (in person) |
| Location | Auckland |
| Parties | Catapang v Aylwin and Anor |
| Other Parties | Bonz Catering Ltd |
| Summary | PRACTICE AND PROCEDURE - Identity of employer - Whether applicant employed by first respondent or second respondent - First respondent director of second respondent - UNJUSTIFIED DISMISSAL - Dismissal - Applicant claimed unjustifiably dismissed by respondent - Whether valid 90 day trial period - Whether applicant casual employee - Visa conditions - PENALTY - Applicant sought penalty for respondent’s failure to provide employment agreement (“EA”) - COSTS - Applicant sought contribution towards costs - Migrant worker - Duty manager |
| Abstract | AUTHORITY FOUND -;PRACTICE AND PROCEDURE: Applicant unfamiliar with name of second respondent company. Standard EA used by first respondent defined second respondent as employer however first respondent failed to retain and produce copy of applicant’s intended EA. First respondent failed to show applicant was aware, or should have reasonably been aware, that second respondent rather than first respondent was employer. Applicant employed by first respondent.;UNJUSTIFIED DISMISSAL: Intended EA stated applicant employed on casual basis but both parties intended full-time employment. Applicant permanent employee. Applicant not provided with intended EA until started work and did not sign intended EA before starting work. No valid 90 day trial period. Applicant dismissed after refusing offer of different position. First respondent’s comments when dismissing applicant motivated by difference of understanding about applicant’s visa conditions and performance concerns. First respondent’s understanding as to applicant’s visa conditions attributable to first respondent’s failure to check applicant’s visa status. Not fair and reasonable to change basis of applicant’s employment on basis of first respondent’s concerns. Dismissal unjustified. REMEDIES: No contributory conduct. First respondent to pay applicant $4,000 reimbursement of lost wages. $5,000 compensation appropriate.;PENALTY: Imposition of penalty would not serve deterrent or educative purpose. No penalty.;COSTS: Less than one day investigation meeting. First respondent persisted in defending applicant’s claim on principle and against advice from legal advisor and mediators. Notional daily tariff appropriate. First respondent to pay applicant $1,500 contribution towards costs. |
| Result | Applications granted (practice and procedure)(unjustified dismissal) ; Reimbursement of lost wages ($4,000) ; Compensation for humiliation etc ($5,000) ; Application dismissed (penalty) ; Costs in favour of applicant ($1,500) ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(2) - ERA s64(2) - ERA s65(1) - ERA s65(2)(a)(i) - ERA s67A - ERA s135(4) ERA s174E - Immigration Act 2009 s350 |
| Cases Cited | Baker v St John Central Regional Trust Board [2013] NZEmpC 34, [2013] ERNZ 449;Blackmore v Honick Properties Ltd [2011] NZEmpC 152, [2011] ERNZ 445;Hall v Dionex Pty Ltd [2015] NZEmpC 29 |
| Number of Pages | 13 |
| PDF File Link: | 2015_NZERA_Auckland_232.pdf [pdf 252 KB] |