| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 339 |
| Hearing date | 16-Aug-16 |
| Determination date | 05 October 2016 |
| Member | A Dallas |
| Representation | M England ; B Tahata |
| Location | Gisborne |
| Parties | Chesnutt v Gisborne Returned and Services' Association Inc |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by unilateral variation in hours, warnings and restructure – Bar manager |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISADVANTAGE: Order for non-publication of respondent’s financial information. Applicant’s employment agreement (“EA”) entitled applicant to work 40 hours a week. Applicant had previously agreed to variation of roster with hours remaining at 40 per week. Applicant did not agree to reduction in hours. Applicant’s hours unlawfully varied by respondent. Respondent did not appear to have carried out investigation or asked for applicant’s response to allegations leading to written warning. Respondent did not give applicant fair opportunity to respond or consider any response to allegations leading to final warning. Warnings unjustified. EA did not give respondent right to restructure applicant’s position in way proposed. Respondent intended to advertise and refill applicant’s position. Restructuring process inconsistent with EA and duty of good faith. Applicant unjustifiably disadvantaged. REMEDIES: No contributory conduct. Respondent ordered to reinstate applicant’s hours of work to 40 per week, sick leave balance to 11.5 days and two alternative leave days and remove evidence of warnings from employment file. Respondent to pay applicant $3,026 reimbursement of lost wages. $6,000 compensation appropriate. Parties directed to mediation. |
| Result | Application granted ; Orders made ; Reimbursement of lost wages ($3,026) ; Compensation for humiliation etc ($6,000) ; Disbursements in favour of applicant ($71.56) ; No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA s4(4)(d) ; ERA s68 ; ERA s103A(3) ; ERA s103A(3)(c) ; ERA s103A(3)(d) ; ERA s103A(5) ; ERA s124 ; ERA s174E ; ERA Second Schedule cl10(1) |
| Cases Cited | D’Arcy Smith v Natural Habitats Ltd [2015] NZEmpC 123 ; Talbot v Air New Zealand Ltd [1996[ 1 NZLR 414 (CA) |
| Number of Pages | 15 |
| PDF File Link: | 2016_NZERA_Auckland_339.pdf [pdf 256 KB] |