| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 101 |
| Hearing date | 29 & 30 July, 3 Sept 2015 (3 days) |
| Determination date | 04 April 2016 |
| Member | Vicki Campbell |
| Representation | LL Wong ; M Smyth |
| Location | Auckland |
| Parties | Green v Mitech Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – DISCRIMINATION – UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably disadvantaged by respondent’s actions – Applicant claimed respondent discriminated against applicant on grounds of sex due to applicant’s pregnancy – Applicant claimed unjustifiably dismissed by respondent – PENALTY – GOOD FAITH – Applicant sought penalty for respondent’s breach of employment agreement (“EA”) and good faith – COUNTERCLAIM – RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – Service planner |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE – DISCRIMINATION – UNJUSTIFIED DISMISSAL: Respondent took steps to address applicant’s concerns as they arose. Respondent’s decisions and responses not discriminatory in nature or based on applicant’s pregnancy, childbirth or family status. No unjustified disadvantage. No discrimination. Respondent dismissed applicant by accepting untendered resignation. No procedural fairness. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $16,605 reimbursement of lost wages. $10,000 compensation for humiliation etc appropriate.;PENALTY – GOOD FAITH: Respondent did not breach EA. Applicant’s stress manifested itself during parental leave. Respondent took steps to investigate and address applicant’s concerns when raised. While applicant on parental leave, no actions gave rise to claim for breach of good faith. No penalty.;COUNTERCLAIM – RAISING PERSONAL GRIEVANCE: Number of applicant’s claims raised outside 90 day period. Respondent attended mediations and did not raise issue with 90 day time limit until served with statement of problem. Respondent gave implied consent to raising grievances. Leave to raise grievances out of time granted. |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages ($16,605) ; Compensation for humiliation etc ($10,000) ; Applications dismissed (unjustified disadvantage)(penalty)(counterclaim – raising personal grievance) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s69AAC(a)(iii);ERA s69AAH;ERA s103(1)(c);ERA s103A(3);ERA s103A(5);ERA s104;ERA s105(1)(a);ERA s105(1)(b);ERA s114(2);ERA s124;ERA s128;ERA s174E;ERA Part 6AA;Parental Leave and Employment Protection Act 1987 s45;Parental Leave and Employment Protection Act 1987 s48 |
| Cases Cited | Creedy v Commissioner of Police [2006] ERNZ 517 (EmpC);Lewis v Greene (2004) 7 NZELC 97,580 (EmpC), [2004] 2 ERNZ 55;Angus v Ports of Auckland Ltd [2011] NZEmpC 160, [2011] ERNZ 466;Davis v Commissioner of Police [2013] NZEmpC 226;McAlister v Air New Zealand Ltd [2009] NZSC 78, [2010] 1 NZLR 153 |
| Number of Pages | 35 |
| PDF File Link: | 2016_NZERA_Auckland_101.pdf [pdf 432 KB] |