| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 124 |
| Hearing date | 13-Apr-16 |
| Determination date | 26 April 2016 |
| Member | Eleanor Robinson |
| Representation | D Zhang ; J Wicks |
| Location | Auckland |
| Parties | Wang v New World Market Ltd |
| Summary | PRACTICE AND PROCEDURE – Whether applicant permanent or casual employee – UNJUSTIFIED DISADVANTAGE – DISCRIMINATION – UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed respondent discriminated against applicant due to age and disability – Applicant claimed unjustifiably dismissed by respondent – Warehouse worker |
| Abstract | AUTHORITY FOUND -;PRACTICE AND PROCEDURE: Applicant had regular pattern of working. Parties had mutual expectation of continuity of employment. Applicant was not issued with written employment agreement, not subject to trial period. Applicant not employed subject to valid fixed term agreement. Applicant permanent employee.;UNJUSTIFIED DISADVANTAGE – DISCRIMINATION – UNJUSTIFIED DISMISSAL: Respondent’s advertisement indicated discriminatory preference for recruitment based on age. Age discrimination factor in Respondent’s decision to dismiss. Respondent’s knowledge of applicant’s disability, applicant’s reaction to loss of property, and fact that applicant receiving benefit influenced respondent’s decision to dismiss. Applicant discriminated against on grounds of age and disability. No written evidence to substantiate respondent spoke to applicant about performance concerns. No evidence of formal disciplinary process. Fair and reasonable employer would not terminate employment on basis of poor performance in circumstances. Respondent not justified in relying upon applicant’s alleged verbal resignation. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant reimbursement of lost wages (quantum to be determined). $5,000 compensation for humiliation etc appropriate. |
| Result | Applications granted ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s6;ERA s66;ERA s66(1);ERA s66(2)(a);ERA s66(4);ERA s67A;ERA s67A(2);ERA s67B;ERA s103(1)(c);ERA s103A;ERA s105(1)(i);ERA s105(1)(h);ERA s123(1)(c)(i);ERA s124;ERA s128(2);ERA s128(3);Human Rights Act 1993 s21;Minimum Wage Act 1983 |
| Cases Cited | Bank of Montreal v USWA (1987) 1987 CarswellNat 1019, 1987 CarswellNat 1020 (QueLRB);Boobyer v Good Health Wanganui Ltd EmpC Wellington WEC3/94, 24 February 1994;Jinkinson v Oceana Gold (NZ) Ltd [2009] ERNZ 225 (EmpC);Stiffe v Wilson & Horton Ltd EmpC Auckland AC94/00, 5 December 2000 |
| Number of Pages | 16 |
| PDF File Link: | 2016_NZERA_Auckland_124.pdf [pdf 237 KB] |