| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 183 |
| Hearing date | 7-Jun-16 |
| Determination date | 09 June 2016 |
| Member | Tania Tetitaha |
| Representation | S Malone ; G Smith |
| Location | Hastings |
| Parties | McKinnon & Anor v Smith |
| Other Parties | Pou |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – UNJUSTIFIED DISMISSAL – Dismissal – Applicants claimed unjustifiably dismissed by respondent – ARREARS OF WAGES AND HOLIDAY PAY – Applicants sought arrears of wages and holiday pay – COSTS – Applicants sought contribution towards costs – Labourer |
| Abstract | AUTHORITY FOUND -;PRACTICE AND PROCEDURE: No employment agreements provided. Respondent personally controlled and directed work of applicants. Applicants employed by respondent.;UNJUSTIFIED DISMISSAL: First applicant dismissed without recourse or investigation. Respondent’s process not actions of fair and reasonable employer. Respondent unilaterally reduced second applicant’s hours. Reasonably foreseeable second applicant would not return to work. Dismissals unjustified. REMEDIES: First applicant’s attendance issues gave rise to dismissal. 25 per cent contributory conduct. Respondent to pay first applicant $6,183 reimbursement of lost wages. $3,750 compensation appropriate. Respondent to pay second applicant $7,286 reimbursement of lost wages. $5,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Respondent did not provide wage and time records. Respondent to pay first applicant $657 arrears of wages and $1,682 arrears of holiday pay. Respondent to pay second applicant $4,169 arrears of wages and $2,985 arrears of holiday pay.;COSTS: Applicants heard together. Respondent to pay applicants $3,500 contribution towards costs. |
| Result | Applications granted ; Contributory conduct (25%)(first applicant) ; Reimbursement of lost wages ($6,183.93)(first applicant)($7,286.50)(second applicant) ; Compensation for humiliation etc ($3,750)(first applicant)($5,000)(second applicant) ; Arrears of wages ($657.52)(first applicant)($4,169.38)(second applicant) ; Arrears of holiday pay ($1,682.83)(first applicant)($2,985.48)(second applicant) ; Costs in favour of applicant ($1,750)(first applicant)($1,750)(second applicant) |
| Main Category | Personal Grievance |
| Statutes | ERA s5;ERA s6(1);ERA s6(2);ERA s6(3);ERA s103A;ERA s123(b);ERA s123(1)(c)(i);ERA s124;ERA s128;ERA s130;ERA s131;ERA s132;Holidays Act 2003 s56;Holidays Act 2003 s81;Holidays Act 2003 s83 |
| Cases Cited | Hutton v Provencocadmus Ltd (in Rec) [2012] NZEmpC 207, [2012] ERNZ 566;Mehta v Elliott [2003] 1 ERNZ 451 (EmpC) |
| Number of Pages | 11 |
| PDF File Link: | 2016_NZERA_Auckland_183.pdf [pdf 243 KB] |