| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 133 |
| Hearing date | 28-Apr-16 |
| Determination date | 02 May 2016 |
| Member | Robin Arthur |
| Representation | A Kelleher ; T Oldfield |
| Location | Auckland |
| Parties | Kimi-Cross v Knowear Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – PENALTY – Applicant sought penalty for failure to provide written employment agreement – COUNTERCLAIM – RECOVERY OF MONIES – Respondent sought recovery of monies for goods taken and kept without permission |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant became angry in performance review meeting and walked out. Likely that applicant misunderstood respondent’s intentions and assumed about to be dismissed. Reasonable to hold performance review in circumstances. Respondent’s manager tried to contact applicant after applicant left and discuss status of employment. Applicant asserted dismissal very early on. Respondent did not let applicant think he had been dismissed. Applicant resigned of own volition. No dismissal.;PENALTY: Respondent failed to provide written employment agreement in accordance with s 65 Employment Relations Act 2000. Need for deterrence. $1,000 penalty appropriate.;COUNTERCLAIM – RECOVERY OF MONIES: More than likely applicant took sneakers without permission or paying for them. Applicant to pay respondent $249 recovery of monies. |
| Result | Applications granted (penalty)(counterclaim – recovery of monies) ; Penalty ($1,000)(payable to Crown) ; Recovery of monies ($249.95) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s63A;ERA s65;ERA s 67A;ERA s67B;ERA s69OJ;ERA s103A;ERA s130(2);ERA s136(2);ERA s174E;Holidays Act 2003 s52 |
| Cases Cited | Boobyer v Good Health Wanganui Ltd EmpC Wellington WEC3/94, 24 February 1994;E N Ramsbottom Ltd v Chambers [2000] 2 ERNZ 97 (CA);Fagotti v Acme Ltd [2015] NZEmpC 135; New Zealand Cards Ltd v Ramsay [2012] NZEmpC 51; PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC);Tan v Yang [2014] NZEmpC 65, [2014] ERNZ 733 |
| Number of Pages | 17 |
| PDF File Link: | 2016_NZERA_Auckland_133.pdf [pdf 231 KB] |