| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2016] NZERA Christchurch 15 |
| Hearing date | 28-Jan-16 |
| Determination date | 22 February 2016 |
| Member | Helen Doyle |
| Representation | S Evans ; F McMillan |
| Location | Christchurch |
| Parties | Brady v Jones |
| Summary | UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed by respondent – Whether applicant abused and harassed – ARREARS OF HOLIDAY PAY – Applicant sought arrears of holiday pay – PENALTY – Applicant sought penalty for failure to provide tea breaks – Shop assistant |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: No mutual agreement to end employment relationship by variation of notice period. Respondent’s sending applicant home constituted actual dismissal. Applicant not given reasonable opportunity to respond to sick leave concerns. Respondent’s investigation process fundamentally unfair. Dismissal unjustified. REMEDIES: Applicant predetermined resignation if challenged about sick leave. 15 per cent contributory conduct. $2,125 compensation for humiliation etc appropriate.;ARREARS OF HOLIDAY PAY: Applicant did not take any leave. Respondent to pay applicant $134 arrears of holiday pay. Interest payable.;PENALTY: Applicant did not raise issue about rest breaks with respondent at time of employment. Applicant did not commence action for penalty. No penalty. |
| Result | Applications granted (unjustified dismissal)(arrears of holiday pay) ; Contributory conduct (15%) ; Arrears of holiday pay ($134.64) ; Compensation for humiliation etc ($2,125) ; Interest (5%) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s69ZD;ERA s69ZE;ERA s103A(3)(a);ERA s103A(3)(c);ERA s103A(3)(d);ERA s123(1)(b);ERA s123(1)(c)(i);Holidays Act 2003 s14;Holidays Act s23;Holidays Act s28;Judicature (Prescribed Rate of Interest) Order 2011;Judicature Act 1908 s87(3) |
| Cases Cited | Auckland and Gisborne Amalgamated Society of Shop Employees and Related Trades (Other Than Auckland Butchers, Grocers and Chemists Employees) Industrial Union of Workers v Bos Upholstery Ltd [1985] ACJ 477 (AC);Wellington, Taranaki and Marlborough Clerical IUOW v Greenwich (t/a Greenwich and Associates Employment Agency and Complete Fitness Centre) [1983] ACJ 965, (1983) ERNZ Sel Cas 95 (AC);Griffith v Sunbeam Corporation Ltd EmpC Wellington WC13/06, 28 July 2006 |
| Number of Pages | 16 |
| PDF File Link: | 2016_NZERA_Christchurch_15.pdf [pdf 207 KB] |