| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 181 |
| Determination date | 24 November 2015 |
| Member | Christine Hickey |
| Representation | P Moore ; R Thompson |
| Location | Christchurch |
| Parties | Jones v Christchurch European Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal - Applicant claimed unjustifiably disadvantaged by respondent’s unilateral reduction in fuel allowance and unfair increase in cars to be sold to get bonus, and failure to pay employer KiwiSaver contribution – Applicant claimed unjustifiably dismissed – PENALTY – Applicant sought penalty for failure to provide written employment agreement, failure to pay wages and failure to provide wage and time records on request - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay - Car salesman |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent’s unilateral reduction in fuel allowance and unfair increase in cars to be sold to get bonus reduced financial benefit applicant received from employment. Respondent needed agreement of applicant before making such changes. Applicant unjustifiably disadvantaged. Applicant did not make KiwiSaver contributions during employment, so respondent not required to make employer KiwiSaver contributions. No unjustified disadvantage. Instead of withholding bonus, respondent should have deducted days’ leave when applicant took day off and did not work on normal day off. Applicant unjustifiably disadvantaged. Applicant’s claim to be disadvantaged by lack of employment agreement raised out of time. Assault on applicant by respondent's director and abusive behaviour during argument made it reasonably foreseeable that applicant would see employment as at end. Behaviour repudiated contract of employment, even if unintentionally. Fair and reasonable employer would not have acted so. Dismissal unjustified. REMEDIES: 20 per cent contributory conduct. Respondent to pay applicant $11,396.66 reimbursement of lost wages. Interest payable. $8,000 compensation for humiliation appropriate. $780 compensation for loss of benefit of fuel allowance and bonuses appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Respondent did not keep wage and time records, or holiday and leave records. Applicant did not put forward sufficient evidence to make finding on arrears claim. No evidence that applicant’s retainer underpaid during employment. Leave reserved for parties to return to Authority if unable to determine quantum.;PENALTY: Respondent failed to provide written employment agreement, but only Labour Inspector can bring penalty claim for such breach. Penalty under Wages Protection Act 1983 not correct means for seeking wages arrears. Respondent did not provide wages and time records, which affected applicant’s ability to quantify arrears claim. Breach deliberate and deterrence needed. $5,000 penalty appropriate. |
| Result | Application granted (unjustified disadvantage – unjustified dismissal)(penalty) ; Contributory conduct (20%) ; Reimbursement of lost wages ($11,396.66) ; Compensation for loss of benefit ($780) ; Interest (5%) ; Compensation for humiliation etc ($8,000) ; Penalty ($5,000)(payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s64;ERA s64(4);ERA s65;ERA s65(4);ERA s103A;ERA s103A(3);ERA s128(2;ERA s128(3);ERA s130;ERA s130(1);ERA s130(2);ERA s131;ERA s132;ERA s132(2);ERA s135;ERA s135(5);Wages Protection Act 1983;Wages Protection Act 1983 s13 |
| Cases Cited | Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA);Fredericks v VIP Frames and Trusses Ltd [2015] NZEmpC 203;Hall v Dionex Pty Ltd [2015] NZEmpC 29;Review Publishing Co Ltd v Walker [1996] 2 ERNZ 407(EmpC);Rittson-Thomas t/a Totara Hills Farm v Davidson [2013] NZEmpC 39, [2013] ERNZ 55;Salt v Fell [2008] NZCA 128, [2008] ERNZ 155;Tan v Yang [2014] NZEmpC 65;Weston v Advkit Para Legal Services Ltd [2010] NZEmpC 140;Xu v McIntosh [2004] 2 ERNZ 448 (EmpC) |
| Number of Pages | 35 |
| PDF File Link: | 2015_NZERA_Christchurch_181.pdf [pdf 414 KB] |