| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 335 |
| Hearing date | 28-Oct-15 |
| Determination date | 29 October 2015 |
| Member | Rachel Larmer |
| Representation | M McGoldrick ; no appearance |
| Location | Auckland |
| Parties | Gu v Utel Telecom Group Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor - UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Poor Performance - Applicant claimed unjustifiably disadvantaged by written warnings and suspension and unjustifiably dismissed by respondent – RECOVERY OF MONIES – Applicant sought recovery of monies to cover expenses of getting medical certificate - PENALTY – Applicant sought penalty for breach of statutory duties – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Deductions from wages - COSTS – Applicant sought contribution towards costs – No appearance for respondent |
| Abstract | AUTHORITY FOUND –;JURISDICTION: Respondent gave applicant two written employment agreements and communicated with applicant’s solicitor without raising concerns as to applicant’s employment status. Applicant given written warnings, suspended and eventually dismissed, rather than having contract terminated. Applicant employee.;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant given written warning for failure to provide medical certificate when applicant had done so. Respondent unilaterally changed applicant’s hours and then gave applicant written warning for not adhering to changes. Respondent told applicant to go home, effectively suspending applicant without notice. Applicant unjustifiably disadvantaged. Respondent appeared to dismiss applicant over visa concerns when applicant had given respondent copy of visa. Respondent failed to investigate sufficiently, provide applicant with all relevant information, offer applicant opportunity to speak and have explanations considered. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $10,769 reimbursement of lost wages. $8,000 compensation appropriate.;RECOVERY OF MONIES: Applicant incurred medical fees solely because respondent disputed sick leave. Applicant not statutorily required to provide medical certificate. Respondent to pay applicant $69 recovery of monies.;ARREARS OF WAGES AND HOLIDAY PAY: Respondent failed to pay applicant minimum wage and did not pay applicant at all for some work. Respondent deducted money from applicant’s wages without written consent. Applicant not paid holiday pay during employment or on dismissal. Respondent to pay applicant $8,929 arrears of wages and $1,575 arrears of holiday pay. Interest payable.;PENALTY: Respondent breached Wages Protection Act 1983 by making deductions from pay without applicant’s written consent. Respondent failed to pay applicant minimum wage. Respondent failed to provide written employment agreement before applicant started work, failed to keep wage and time records and produce records on request. Respondent failed to pay holiday pay on termination, failed to keep holiday and leave records and produce records on request. Breaches serious. Respondent threatened to report applicant to Immigration when applicant made legitimate complaints about employment situation. No remorse shown. Respondent escalated unlawful actions after receiving complaints from applicant’s solicitor. $20,000 penalty appropriate.;Less than half day investigation meeting. Applicant sought uplift in notional daily tariff due to unnecessary expenses in responding to inaccurate and misleading information provided by respondent. Applicant’s conduct of case substantially decreased investigation time. Appropriate to apply uplift in notional daily tariff. Respondent to pay applicant $3,500 contribution towards costs. |
| Result | Applications granted ; Reimbursement of lost wages ($10,769.23) ; Compensation for humiliation etc ($8,000) ; Recovery of monies ($69) ; Arrears of wages ($8,929.05) ; Arrears of holiday pay ($1,575.86) ; Interest (5%) ; Penalty ($20,000)(payable to Crown) ; Costs in favour of applicant ($3,500) ; Disbursements in favour of applicant ($71.56) |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s6;ERA s65;ERA s103A;ERA s103A(2);ERA s103A(3);ERA s128;ERA s130;ERA s132(2);Minimum Wage Act 1983;Wages Protection Act 1983;Holidays Act 2003;Holidays Act 2003 s23;Holidays Act 2003 s81 |
| Number of Pages | 18 |
| PDF File Link: | 2015_NZERA_Auckland_335.pdf [pdf 262 KB] |