| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 331 |
| Determination date | 21 October 2015 |
| Member | TG Tetitaha |
| Representation | W McPhail ; no appearance |
| Location | Auckland |
| Parties | Clinker v Sherlock Contracting Ltd and Anor |
| Other Parties | Sherlock |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by respondent’s refusal to offer acceptable work hours and unjustifiably dismissed by respondent – RECOVERY OF MONIES – Applicant sought to recover work phone expenses - ARREARS OF HOLIDAY PAY – Applicant sought arrears of wages – No appearance for respondents – Driver |
| Abstract | AUTHORITY FOUND –;PRACTICE AND PROCEDURE: Applicant accepted employment with first respondent in evidence. Letter raising personal grievance named first respondent as employer. No evidence second respondent seeking to personally engage applicant as employee. Applicant employed by first respondent.;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: No evidence that respondent offered applicant minimum of 50 hours per week in employment agreement or in actual hours worked. Applicant could not have been disadvantaged by any reduction in hours below 50 per week. No unjustified disadvantage. Applicant appeared to have resigned based on reduction in hours, but respondent did not breach duty by reducing applicant’s hours. No dismissal.;RECOVERY OF MONIES: No written agreement to reimburse phone expenses. Little evidence to suggested that parties had orally agreed reimbursement. In any case, applicant did not have evidence of expenses incurred. No recovery of monies.;ARREARS OF HOLIDAY PAY: In absence of respondents and in light of first respondent’s failure to produce wage and time records, applicant’s evidence accepted as proved. Respondent to pay applicant $8,816 arrears of holiday pay. |
| Result | Application granted (arrears of holiday pay) ; Arrears of holiday pay ($8,816.72) ; Applications dismissed (unjustified disadvantage – unjustified dismissal)(recovery of monies) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s131;ERA s132;ERA Second Schedule cl12;Holidays Act 2003 s24;Holidays Act 2003 s25;Holidays Act 2003 s28;Holidays Act 2003 s81;Holidays Act 2003 s83(3);Holidays Act 2003 s83(4) |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union of Workers Inc [1994] 2 NZLR 415 (CA);Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA);Wellington, Taranaki and Marlborough Clerical Administration and Related Workers IUOW v Greenwich t/a Becket Employment [1983] ACJ 965 (AC) |
| Number of Pages | 9 |
| PDF File Link: | 2015_NZERA_Auckland_331.pdf [pdf 282 KB] |