| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 157 |
| Hearing date | 30-Jun-15 |
| Determination date | 22 October 2015 |
| Member | Christine Hickey |
| Representation | A Oberndorfer ; R Diggs (in person) |
| Location | Christchurch |
| Parties | Genta v Diggs and Ors |
| Other Parties | Adventure Holidays Ltd, Road Runner Rentals Ltd |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – UNJUSTIFIED DISAVANTAGE – UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably disadvantaged by first respondent’s failure to sign parental leave documentation and failure to pay student loan and KiwiSaver payments – Applicant claimed unjustifiably dismissed by respondent - ARREARS OF WAGES – Applicant sought arrears of wages - PENALTY – GOOD FAITH – Applicant sought penalty for first respondent’s breach of good faith, failure to provide written employment agreement and failure to provide wage and time records on request – Reservations Manager |
| Abstract | AUTHORITY FOUND –;PRACTICE AND PROCEDURE: Applicant believed that first respondent was employer. Applicant not aware of second respondent’s existence until several months into employment relationship, and did not agree to make second respondent employer. Reasonable person would consider first respondent to be employer. Applicant employed by first respondent.;UNJUSTIFIED DISAVANTAGE – UNJUSTIFIED DISMISSAL: First respondent refused to sign parental leave documentation. Applicant would not have been employed during proposed period of parental leave, due to financial problems of first respondent. Applicant not disadvantaged by first respondent’s failure to complete parental leave documentation. First respondent’s accountant initially failed to make student loan and KiwiSaver payments, but remedied breaches quickly once aware. No unjustifiable disadvantage. First respondent’s business struggling financially. No longer viable business that could keep applicant employed by time of dismissal. First respondent dismissed applicant before receiving feedback on redundancy, after agreeing to allow reasonable time period for applicant to give feedback. First respondent breached good faith obligations to allow applicant to comment on proposal. First respondent breached procedural fairness obligations by failure to allow applicant opportunity to comment and have views considered. Dismissal unjustified. REMEDIES: No contributory conduct. $6,000 compensation appropriate.;ARREARS OF WAGES: First respondent only paid applicant one weeks’ notice, when applicant entitled to two weeks’. First respondent to pay applicant $647 arrears of wages.;PENALTY – GOOD FAITH: Claim for penalty for failure to provide written employment agreement can only be brought by Labour Inspector. Applicant already compensated for first respondent’s breach of good faith in other remedies. First respondent failed to produce wage and time records on request and so disadvantaged applicant in making arrears claim. Breach ongoing and first respondent showed lack of remorse. $500 penalty appropriate. |
| Result | Applications granted (unjustified dismissal)(arrears of wages) ; Compensation for humiliation etc ($6,000) ; Arrears of wages ($647.93) ; Application partially granted (penalty – good faith) ; Penalty ($500)(payable to Crown) ; Application dismissed (unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s4(1A)(b);ERA s4(1A)(c);ERA s4(1A)(c)(ii);ERA s4(4)(d);ERA s4(4)(e);ERA s6;ERA s6(2);ERA s6(3);ERA s65;ERA s103A(3);ERA s124;ERA s130;ERA s130(2);ERA s130(4);ERA s133(1)(b);ERA s135(2);ERA s174;ERA s221;Parental Leave and Employment Protection Act 1987;Parental Leave and Employment Protection Act 1987 s7 |
| Cases Cited | Hutton v Provencocadmus Ltd (in receivership) [2012] NZEmpC 207, [2012] ERNZ 566;Mehta v Elliot [2003] 1 ERNZ 451 (EmpC);Rittson-Thomas t/a Totara Hills Farm v Davidson [2013] NZEmpC 39, [2013] ERNZ 55;Tan v Yang [2014] NZEmpC 65;Xu v McIntosh [2004] 2 ERNZ 448 (EmpC) |
| Number of Pages | 20 |
| PDF File Link: | 2015_NZERA_Christchurch_157.pdf [pdf 351 KB] |