| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2016] NZERA Wellington 19 |
| Hearing date | 10-Feb-16 |
| Determination date | 10 February 2016 |
| Member | Michael Loftus |
| Representation | AM Strang (in person) ; S Strang |
| Location | Wellington |
| Parties | Strang v Rutherford and Anor |
| Other Parties | Men's Grooming Ltd t/a Barker's Groom |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – ARREARS OF HOLIDAY PAY AND KIWISAVER – Applicant sought arrears of holiday pay and KiwiSaver contributions – BREACH OF CONTRACT – Applicant sought damages to cover accountant’s fees incurred due to respondent’s breaches - PENALTY – Applicant sought penalty for failure to provide employment agreement (“EA”), failure to pay holiday pay and failure to bargain for EA fairly - No appearance for respondent – Hairdresser |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent failed to provide employment agreement, despite promises to do so. Respondent frequently paid applicant late and incorrectly. Respondent failed to pay PAYE, student loan repayments and KiwiSaver contributions. Reasonably foreseeable that applicant would resign. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $5,307 reimbursement of lost wages. $2,000 compensation appropriate.;ARREARS OF HOLIDAY PAY AND KIWISAVER: Applicant’s evidence supported by evidence of accountant and not denied by respondent. Respondent to pay applicant $1,057 arrears of holiday pay and $352 arrears of KiwiSaver.;BREACH OF CONTRACT: Accountant’s bill directly attributable to respondent’s failures and would not have been incurred but for those failures. Respondent to pay applicant $736 damages.;PENALTY: Penalty for failure to provide EA under s 65(4) Employment Relations Act 2000 can only be brought by Labour Inspector. Other breaches serious, numerous and repeated. Respondent has acted in similar fashion before. Need for deterrence apparent. $5,000 penalty appropriate. |
| Result | Applications granted ; Reimbursement of lost wages ($5,307.12) ; Compensation for humiliation etc ($2,000) ; Arrears of holiday pay ($1,057.92) ; Arrears of Kiwisaver contributions ($352.94) ; Damages ($736) ; Penalty ($5,000)(payable to Crown) ; Disbursements in favour of applicant ($71.56) ; No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA s63A(2);ERA s65(4);ERA s128(2);ERA s135;ERA s136;Holidays Act 2003 s75(2)(a) |
| Cases Cited | Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA);Gunning v Bankrupt Vehicle Sales and Finance Ltd [2013] NZEmpC 212, (2013) 11 NZELR 240;Ingham v Swan t/a Mensworks [2015] NZERA Auckland 101;Tan v Yang [2014] NZEmpC 65;Weston v Advkit Para Legal Services Ltd [2010] NZEmpC 140, (2011) 8 NZELR 604;Z v Y Ltd and A [1993] 2 ERNZ 469 (EmpC) |
| Number of Pages | 7 |
| PDF File Link: | 2016_NZERA_Wellington_19.pdf [pdf 112 KB] |