| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2015] NZERA Wellington 84 |
| Hearing date | 17-Jun-15 |
| Determination date | 31 August 2015 |
| Member | Trish MacKinnon |
| Representation | B Laracy ; No appearance |
| Location | Wellington |
| Parties | Singh v Palaniammah Ltd and Ors |
| Other Parties | Wellywood Genuine Talk Ltd, Narayanasamy |
| Summary | PRACTICE AND PROCEDURE – Identity of employer - SEXUAL HARASSMENT - UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed sexually harassed by respondent -Applicant claimed unjustifiably disadvantaged by written warnings, fines, being required to perform duties outside scope of employment and respondent’s verbal abuse of applicant - Applicant claimed unjustifiably dismissed by respondent – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Deductions from wages – PENALTY – Applicant sought penalty for respondent’s breach of good faith, unlawful deductions from wages and failure to provide wage and time and holiday and leave records on request – COSTS – Applicant sought contribution towards costs - No appearance for respondents |
| Abstract | AUTHORITY FOUND –;PRACTICE AND PROCEDURE: Employment agreement stated that applicant employed by first and second respondents. No employment relationship between applicant and third respondent. Applicant employed by first and second respondents.;SEXUAL HARASSMENT - UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Third respondent (“D”), director of first and second respondents, sent unwelcome texts and made comments of sexual nature to applicant. D sexually harassed applicant. First and second respondents failed to take any stops to prevent harassment after applicant complained to manager. Applicant given warning letter informing applicant of suspension and then termination letter two days later. No process preceding either letter. First and second respondents failed to provide all relevant information, provide opportunity to comment and have explanations heard or investigate properly. Dismissasl unjustified. Written warnings taken into account in dismissing applicant, so applicant disadvantaged unjustifiably by them. Fine issue same as deductions issue and dealt with under arrears claim. Applicant did not protest at being asked to do other tasks outside original scope of employer. Reasonable for first and second respondents to assume applicant agreed to those duties. Verbal abuse of applicant dealt with as sexual harassment. Applicant unjustifiably disadvantaged by written warnings. REMEDIES: No contributory conduct. First and second respondents to pay applicant $10,948 reimbursement of lost wages. $7,500 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: First and second respondents paid applicant less than agreed wage and failed to pay holiday pay on gross earnings. First and second respondents deducted wages from applicant as punishment for applicant. No justification for first and second respondents’s actions. First and second respondents to pay applicant $9,177 arrears of wages and $4,889 arrears of holiday pay.;PENALTY: Insufficient evidence regarding failure to maintain and produce records. Good faith issues related to grievances, so dealt with under grievance remedies. Penalty appropriate for two incidents of unlawful deductions from wages. D under impression that could make deductions as “fines” as saw fit. $3,000 penalty appropriate.;COSTS: Half day investigation meeting. Appropriate to apply notional daily tariff. First and second respondents to pay applicant $1,750 contribution towards costs. |
| Result | Applications granted ; Orders made ; Reimbursement of lost wages ($10,948) ; Compensation for humiliation etc ($7,500) ; Arrears of wages ($9,177.96) ; Arrears of holiday pay ($4,889.25) ; Penalty ($3,000) ; Costs in favour of applicant ($1,750) ; Disbursements in favour of applicant ($71.56) |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4A;ERA s103(1)(d);ERA s103A;ERA s108;ERA s108(1);ERA s108(1)(b)(i);ERA s128;ERA s132;ERA Second Schedule cl12;Holidays Act 2003;Holidays Act 2003 s24;Holidays Act 2003 s50;Holidays Act 2003 s56;Holidays Act 2003 s60;Holidays Act s83;Wages Protection Act s4;Wages Protection Act s13 |
| Cases Cited | Tan v Yang [2014] NZEmpC 65;Xu v McIntosh [2004] 2 ERNZ 448 (EmpC) |
| Number of Pages | 14 |
| PDF File Link: | 2015_NZERA_Wellington_84.pdf [pdf 245 KB] |