| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 392 |
| Hearing date | 8-Dec-15 |
| Determination date | 10 December 2015 |
| Member | Robin Arthur |
| Representation | H Trivedi ; M Lee (in person) |
| Location | Auckland |
| Parties | Lee v Y & B Investment Ltd & Anor |
| Other Parties | Lee |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Whether applicant employed by first or second respondent - UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by second respondent – Sexual harassment – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay - PENALTY – Applicant sought penalty for failure to provide written employment agreement (“EA”) and breach of terms of employment– Bartender |
| Abstract | AUTHORITY FOUND –;PRACTICE AND PROCEDURE: Applicant had no knowledge that first respondent was employer. Applicant believed employed by second respondent. Applicant not given written EA to identify employer and paid in cash with no pay slips. Second respondent failed to make identity of employer clear to applicant. Applicant employed by second respondent.;UNJUSTIFIED DISMISSAL: Second respondent took applicant to strip club, made inappropriate comments to her and touched applicant inappropriately. Second respondent’s behaviour unwelcome and offensive to applicant and amounted to sexual harassment. Second respondent assaulted applicant by throwing things at her. Second respondent’s actions breached trust and confidence so as to be reasonably foreseeable that applicant would no longer be able to work for second respondent. Even if not, second respondent’s actions in requiring applicant to return work phone and workplace keys amounted to sending away of applicant. Dismissal unjustified. REMEDIES: no contributory conduct. Second respondent to pay applicant $8,000 reimbursement of lost wages. $8,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Second respondent failed to pay applicant wages on agreed terms and failed to pay applicant any holiday pay during employment. Respondent to pay applicant $1,000 arrears of wages and $480 arrears of holiday pay.;PENALTY: No need to further punish second respondent for breach of terms of employment, given how police dealt with assault and other remedies already awarded. Second respondent failed to give applicant or other employees written employment agreements. $1,000 penalty appropriate. |
| Result | Applications granted ; Reimbursement of lost wages ($8,000) ; Compensation for humiliation etc ($8,000) ; Arrears of wages ($1,000) ; Arrears of holiday pay ($480) ; Penalty ($1,000)(payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s63A(3);ERA s108(1)(b);ERA s124;ERA s135;ERA s174E;Holidays Act 2003 s28 |
| Cases Cited | Cuttance (t/a Olympus Fitness Centres) v Perkis [1994] 2 ERNZ 321 (EmpC);Fagotti v Acme Ltd [2015] NZEmpC 135;Hall v Dionex Pty Ltd [2015] NZEmpC 29;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC);Weston v Fraser (2008) 5 NZELR 575 (EmpC) |
| Number of Pages | 15 |
| PDF File Link: | 2015_NZERA_Auckland_392.pdf [pdf 217 KB] |