| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 288 |
| Hearing date | 27 & 28 Apr 2016 (2 days) |
| Determination date | 24 August 2016 |
| Member | E Robinson |
| Representation | M Steens ; N Bradley |
| Location | Rotorua |
| Parties | Patangata and Anor v Kimiora Ltd |
| Other Parties | Fraser |
| Summary | PRACTICE AND PROCEDURE – Whether applicant casual or permanent employee - UNJUSTIFIED DISMISSAL – Constructive Dismissal - Applicants claimed unjustifiably dismissed by respondent - ARREARS OF WAGES AND HOLIDAY PAY – Applicants sought arrears of wages and holiday – Deductions from wages – PENALTY – Applicants sought penalty for failure to provide written employment agreement and failure to pay minimum wage – COUNTERCLAIM – RECOVERY OF MONIES – Respondent sought recovery of monies to cover garage account, advance paid for funeral attendance and equipment purchased - Orchard workers |
| Abstract | AUTHORITY FOUND –PRACTICE AND PROCEDURE: Daily hours worked by applicants varied, but applicants worked on consistent basis and had regular pattern of work. Mutual expectation of continuity of employment. Applicants advised respondent when going to take leave. Applicants permanent employees.UNJUSTIFIED DISMISSAL: Trespass notice issued against applicants prevented applicants from working on any orchards owned by respondent. Parties not active and constructive in trying to clarify situation regarding ongoing employment after trespass notice issued. Notice effectively constituted sending away of applicants. Procedural fairness requirements not met. Dismissal unjustified. REMEDIES: 90 per cent contributory conduct for first applicant. $400 compensation appropriate for first applicant. No contributory conduct for second applicant. $4,000 compensation appropriate for second applicant.ARREARS OF WAGES AND HOLIDAY PAY: In absence of calculations to show otherwise, evidence accepted that respondent paid applicants minimum wage. Applicants not paid for final week of employment. Respondent deducted monies for rent, loan deductions, use of van and van repairs without written agreement. Respondent failed to pay holiday pay on termination of employment. Insufficient evidence to determine holiday pay claims for certain time period. Applicants directed to provide further information. Respondent to pay first applicant $6,401 arrears of wages and $1,421 arrears of holiday pay and second applicant $803 arrears of wages and $605 arrears of holiday pay. Leave reserved for respondent to adduce further evidence.PENALTY: Applicants failed to commence claim within 12 months of becoming aware of cause of action. No penalty.COUNTERCLAIM – RECOVERY OF MONIES: No written evidence to support claims. Claims appeared to be private matter between applicants and respondent’s manager so employment jurisdiction not appropriate forum. No recovery of monies. |
| Result | Applications granted (unjustified dismissal)(arrears of wages and holiday pay ) ; Contributory conduct (90%) ; Compensation for humiliation etc ($400)(first applicant)($4,000)(second applicant) ; Arrears of wages ($6,401)(first applicant)($803.60)(second applicant) ; Arrears of holiday pay ($1,421.33)(first applicant)($605.66)(second applicant) ; Applications dismissed (penalty)(counterclaim – recovery of monies) ; Costs to lie where they fall |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1) ; ERA s4(1A) ; ERA s6 ; ERA s65(1)(a) ; ERA s65(4) ; ERA s103 ; ERA s124 ; ERA s128 ; ERA s128(1)(b) ; ERA s130 ; ERA s135(5) ; ERA s174 ; Minimum Wage Act 1983 s4 ; Holidays Act 2003 s28(1) ; Wages Protection Act 1983 s4 ; Wages Protection Act 1983 s11 |
| Cases Cited | Allen v TransPacific Industries Group Ltd (t/a Media Smart Ltd) (2009) 6 NZELR 530 (EmpC) ; Bank of Montreal v United Steelworkers of America 87 CLLC 16,044 (CLRB) ; Jinkinson v Oceana Gold (NZ) Ltd [2009] ERNZ 225 (EmpC) ; Radius v Residential Care Ltd v McLeay [2010] NZEmpC 149 ; Wellington, Taranaki and Marlborough Clerical Administration and Related Workers IUOW v Greenwich t/a Becket Employment [1983] ACJ 965 (AC) |
| Number of Pages | 27 |
| PDF File Link: | 2016_NZERA_Auckland_288.pdf [pdf 388 KB] |