| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2016] NZERA Christchurch 109 |
| Hearing date | 13-Apr-16 |
| Determination date | 13 July 2016 |
| Member | Christine Hickey |
| Representation | K Murray ; E Locke |
| Location | Christchurch |
| Parties | Higgins v Alan Samson Ltd t/a Calendar Girls |
| Summary | JURISDICTION - Whether applicant employee or contractor - RAISING PERSONAL GRIEVANCE - Whether grievance raised within 90 days - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Constructive Dismissal - Applicant claimed unjustifiably disadvantaged by respondent’s actions - Applicant claimed unjustifiably dismissed by respondent - ARREARS OF WAGES - Applicant sought arrears of wages - PENALTY - Applicant sought penalty for respondent’s failure to provide wage and time records - Duty manager |
| Abstract | AUTHORITY FOUND -;JURISDICTION: Real nature of relationship suggested employment relationship. Applicant employee.;RAISING PERSONAL GRIEVANCE: A number of grievances were raised outside 90 day limit. Respondent did not consent to grievances being raised out of time. No exceptional circumstances. Several grievances relating to respondent’s alleged unilateral variation of applicant’s terms of employment, removal of duty manager’s certificate and beginning disciplinary process raised within time. Grievances raised within 90 days.;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Parties agreed to reduction of applicant’s hours. Any procedural defects were minor and did not result in unfair treatment. No intention to diminish applicant’s reputation in eyes of subordinate staff by rostering decisions. Temporary removal of duty manager’s certificate did not amount to disadvantage. Respondent entitled to investigate alleged misconduct. No unjustified disadvantage. Break down of trust and confidence attributable to both parties. No constructive dismissal.;ARREARS OF WAGES: Offer for full time wages conditional on successful trial period. Applicant did not successfully complete trial period. Applicant able to work elsewhere during sick leave. No sick leave entitlements. No arrears of wages.;PENALTY: Respondent provided wage and time records before investigation meeting. No penalty. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1) - ERA s4(1A) - ERA s65 - ERA s65(2)(a)(vi) - ERA s103A - ERA s103A(3) - ERA s114 - ERA s115 - ERA s174E |
| Cases Cited | Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA);Davies v Dove Hawkes Bay Inc [2013] NZEmpC 83, [2013] ERNZ 191;Wellington, Taranaki and Marlborough Clerical IUOW v Greenwich (t/a Greenwich and Associates Employment Agency and Complete Fitness Centre) (1983) ERNZ Sel Cas 95 (AC) |
| Number of Pages | 27 |
| PDF File Link: | 2016_NZERA_Christchurch_109.pdf [pdf 374 KB] |