| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2016] NZERA Wellington 25 |
| Hearing date | 26 Nov & 16 Dec 2015 (2 days) |
| Determination date | 22 February 2016 |
| Member | Tania Tetitaha |
| Representation | A Espie ; D Mitchell, no appearance |
| Location | Wellington |
| Parties | Mihajlovic and Anor v Paramount Services Ltd and Anor |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Whether applicant’s employment transferred from first respondent to second respondent – UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Redundancy – Applicants claimed unjustifiably disadvantaged by second respondent for variations to employment agreement and bargaining for redundancy – Applicants claimed unjustifiably dismissed by respondents – PENALTY – Whether penalty raised within 12 months – Applicants sought leave to raise penalty out of time – Cleaner |
| Abstract | AUTHORITY FOUND -;PRACTICE AND PROCEDURE: Applicants transfer governed by Part 6A of ERA. No evidence applicants consented to handwritten changes in transfer of employment. Written election to transfer invalid and no evidence of any further agreement regarding transfer. First respondent continued to pay applicant’s wages, provided products and equipment. First applicant remained in control of applicants’ employment until termination. Applicants employed by first respondent.;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Second respondent not applicants’ employer. No unjustified disadvantage. Dismissal for redundancy substantively and procedurally flawed. No genuine reasons for redundancy, concerns related to second respondent. Concerns and investigations limited by assumption second respondent was employer. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay first applicant $5,000 reimbursement of lost wages. Respondent to pay second applicant three months reimbursement of lost wages. $5,000 compensation each for humiliation etc appropriate.;PENALTY: Applicants obtained legal advice and could have reasonably become aware of possibility of breaches within 12 month period. No explanation for delay in penalty claim. No penalty. |
| Result | Application granted ; Reimbursement of lost wages ($5,000.32)(first applicant)(three months)(second applicant) ; Compensation for humiliation etc ($5,000)(first applicant)($5,000)(second applicant) ; Applications dismissed (unjustified disadvantage)(penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s6;ERA s6(2);ERA s6(3);ERA s69A;ERA s69B;ERA s69C(4);ERA s69G;ERA s69G(1)(a);ERA s69G(1)(c);ERA s69G(1)(d);ERA s69I;ERA s123(1)(b);ERA s123(1)(c)(i);ERA s124;ERA s128;ERA s135(5);ERA s160(3);ERA s221(c);ERA Part 6A;ERA Schedule 1A;ERA Second Schedule cl12 |
| Cases Cited | Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248 (CA);Bryson v Three Foot Six Ltd [2003] 1 ERNZ 581 (EmpC);Curlew v Harvey Norman Stores (NZ) Pty Ltd [2002] 1 ERNZ 114 (EmpC);Service and Food Workers Union Nga Ringa Tota Inc v OCS Ltd [2012] NZSC 69, [2012] 3 NZLR 799;Pacific Plastic Recyclers Ltd v Foo [2002] 2 ERNZ 75 (EmpC);Sam's Fukuyama Food Services Ltd v Zhang [2011] NZCA 608, [2011] ERNZ 482;Doran v Crest Commercial Cleaning Ltd [2012] NZEmpC 97, [2012] ERNZ 161;Fotu v Crest Commercial Cleaning Ltd [2012] NZERA Auckland 307 |
| Number of Pages | 14 |
| PDF File Link: | 2016_NZERA_Wellington_25a.pdf [pdf 313 KB] |