| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 378 |
| Hearing date | 2-Dec-15 |
| Determination date | 03 December 2015 |
| Member | Robin Arthur |
| Representation | A Silberstein ; P Bhadwandas (in person) |
| Location | Auckland |
| Parties | Prasad v Bhagwandas t/a White Swan Autos |
| Summary | UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed by respondent – 90 day trial – ARREARS OF WAGES – Applicant sought arrears of wages and holiday pay – COUNTERCLAIM – RECOVERY OF MONIES – Respondent sought recovery of monies owed by applicant – COSTS – Applicant sought contribution towards costs – Mechanic |
| Abstract | AUTHORITY FOUND-;UNJUSTIFIED DISMISSAL: Trial period clause in employment agreement (“EA”) failed to meet statutory requirements. Applicant not given opportunity to seek independent advice before signing EA. Respondent failed to investigate concerns about validity of absence from work. Respondent failed to raise concerns with applicant and give applicant opportunity to respond. Applicant unjustifiably dismissed. REMEDIES: No contributory conduct. Respondent to pay applicant $2,000 reimbursement of lost wages. $6,000 compensation appropriate.;ARREARS OF WAGES: Respondent failed to pay applicant for time actually worked and for reasonable period of notice that applicant should have been given. Respondent never paid applicant holiday pay during employment and applicant did not take any paid holidays. Respondent to pay applicant $2,140 arrears of wages and $1034 arrears of holiday pay.;COUNTERCLAIM – RECOVERY OF MONIES: Parties agreed that applicant would reimburse part of costs of course. Applicant also owed respondent money for new tyres. Applicant to pay respondent $662 recovery of monies.;COSTS: Less than half day investigation meeting. Respondent to pay applicant $1,200 contribution towards costs. |
| Result | Applications granted ; Reimbursement of lost wages ($2,000) ; Compensation for humiliation etc ($6,000) ; Arrears of wages ($2,140) ; Arrears of holiday pay ($1,034.08) ; Recovery of monies ($642) ; Costs in favour of applicant ($1,200) ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s63(2);ERA s65;ERA s67A;ERA s67A(3);ERA s67B;ERA s103A;ERA s123(1)(b);ERA s123(1)(c)(i);ERA s131;ERA s124;ERA s174B;ERA s174E;ERA Second Schedule cl15;Holidays Act 2003 s16;Holidays Act 2003 s23 |
| Cases Cited | Blackmore v Honick Properties Ltd [2011] NZEmpC 152, [2011] ERNZ 445;Hall v Dionex Pty Ltd [2015] NZEmpC 29;The Cabinet Place Ltd v Kubesch [2015] NZEmpC 193 |
| Number of Pages | 12 |
| PDF File Link: | 2015_NZERA_Auckland_378.pdf [pdf 205 KB] |