| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2016] NZERA Christchurch 23 |
| Hearing date | 10-Nov-15 |
| Determination date | 07 March 2016 |
| Member | David Appleton |
| Representation | K Murray, S Boyce ; G Malone |
| Location | Nelson |
| Parties | Smith v Extensions to Life Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by written warning and suspension – Applicant claimed unjustifiably dismissed by respondent - ARREARS OF WAGES – Applicant sought arrears of wages - PENALTY – Applicant sought penalty for breach of employment agreement (“EA”), breach of good faith and failure to produce wage and time records |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Order for non-publication of identity of patient. When issuing written warning, respondent failed to tell applicant of possible consequences, make it clear that there was disciplinary meeting, make it clear to applicant that she should bring support person or advise applicant in advance of concerns. Applicant unjustifiably disadvantaged by written warning. Applicant and respondent’s director had argument at disciplinary meeting, resulting in postponement of meeting. Applicant’s behaviour at meeting potentially serious misconduct so suspension substantively justified. Respondent failed to consult with applicant before suspension. Not fair or reasonable for respondent to suspend applicant without consultation. Applicant unjustifiably disadvantaged by suspension. Before dismissing applicant, respondent failed to provide statements made by other staff. Fair and reasonable employer would have shown applicant statements. Fair and reasonable employer would not have decided applicant to blame for issues at previous disciplinary meeting without reconvening meeting. Dismissal unjustified. REMEDIES: 30 per cent contributory conduct. $13,000 compensation appropriate.;ARREARS OF WAGES: Applicant carried out sleepovers while acting as sole carer of patient. Such sleepovers typical work. Sleepovers work for purposes of Minimum Wage Act 1983. Respondent failed to pay applicant minimum wage during sleepovers. Respondent to pay applicant $1,038 arrears of wages.;PENALTY: No breach of EA regarding sleepover payments. Respondent failed to adhere to terms of EA during suspension process. Failure to disclosure relevant information already accounted for in dismissal remedies. Respondent failed to produce wage and time records. Respondent’s conduct not serious, sustained or deliberate. No penalty. |
| Result | Applications granted (unjustified disadvantage-unjustified dismissal) ; Contributory conduct (30%) ; Compensation for humiliation etc ($13,000) ; Arrears of wages ($1,038.50) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4A;ERA s103A;ERA s128;ERA s134;Minimum Wage Act 1983;Minimum Wage Act 1983 s6;Minimum Wage Order 2012 cl4;Minimum Wage Order 2013 cl4 |
| Cases Cited | Carter Holt Harvey Ltd v Yukich [2005] ERNZ 300 (CA);Hall v Dionex Pty Ltd [2015] NZEmpC 29;Idea Services Ltd v Dickson [2009] ERNZ 116 (EmpC) |
| Number of Pages | 29 |
| PDF File Link: | 2016_NZERA_Christchurch_23.pdf [pdf 578 KB] |