| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 302 |
| Hearing date | 7 & 28 April 2016 (2 days) |
| Determination date | 05 September 2016 |
| Member | Nicola Craig |
| Representation | E Kuo ; R Reed |
| Location | Auckland |
| Parties | Zhang v JBG Trading Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Poor Performance - Applicant claimed unjustifiably disadvantaged by failure to pay holiday pay over Christmas break– Applicant claimed unjustifiably dismissed by respondent - PENALTY – Applicant sought penalty for failure to provide rest breaks – Warehouse assistant |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: No evidence that respondent deliberately failed to pay applicant. Respondent arranged payment after consulting accountant. No evidence of any particular disadvantage to applicant. No disadvantage. Respondent decided to give applicant final chance to improve performance, but did not tell applicant. In any case, no further events occurred during final chance period that would justify dismissal. Appeared that respondent simply decided had had enough of applicant. Fair and reasonable employer would have told applicant employment in jeopardy and not made decision to dismiss if no repetition of misconduct or poor performance. Dismissal unjustified. REMEDIES: 20 per cent contributory conduct. Respondent to pay applicant $2,400 reimbursement of lost wages. $4,000 compensation appropriate.PENALTY: Parties discussed tea breaks when applicant started. Tea breaks provided for and taken, with occasional interruptions. No penalty. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (20%) ; Reimbursement of lost wages ($2,400) ; Compensation for humiliation etc ($4,000) ; Applications dismissed (penalty)(unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s69ZD ; ERA s69ZD(5) ; ERA s124 ; ERA s174C(3)(b) ; ERA s174C(4) ; ERA s174E |
| Cases Cited | Harris v The Warehouse Ltd [2014] NZEmpC 188, [2014] ERNZ 480 ; Paykel Ltd v Morton [1994] 1 ERNZ 875 (EmpC) |
| Number of Pages | 13 |
| PDF File Link: | 2016_NZERA_Auckland_302.pdf [pdf 143 KB] |