| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2016] NZERA Wellington 126 |
| Hearing date | 10-Oct-16 |
| Determination date | 10 October 2016 |
| Member | M Loftus |
| Representation | A Porter ; H Fuimaono, M Fuimaono |
| Location | Wellington |
| Parties | Houia v Nga Taonga Tuku Iho I Te Wa Kainga (NTTI) and Ors |
| Other Parties | Fuimaono, Fuimaono |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – RECOVERY OF MONIES – Applicant sought recovery of work-related expenses - PENALTY – GOOD FAITH - Applicant sought penalty for respondent’s failure to bargain fairly and breach of good faith - Teacher |
| Abstract | AUTHORITY FOUND –PRACTICE AND PROCEDURE: Applicant believed employed by second respondent. Applicant not aware of third party company that respondents claimed was employer. Applicant employed jointly by second and third respondents.UNJUSTIFIED DISMISSAL: Respondent failed to pay applicant and unilaterally cut applicant’s hours. Breaches significant. Reasonably foreseeable that applicant would resign. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Second and third respondent to pay applicant $11,250 reimbursement of lost wages. $7,500 compensation appropriate.ARREARS OF WAGES AND HOLIDAY PAY: Applicant’s evidence accepted as proved since respondents failed to provide wages and time records. Respondent to pay applicant $11,140 arrears of wages and $7,586 arrears of holiday pay.RECOVERY OF MONIES: Employment agreement entitled applicant to reimbursement of expenses. $2,385 recovery of monies.PENALTY – GOOD FAITH: Breaches already recognises in personal grievance remedies. No penalty. |
| Result | Applications granted (practice and procedure)(unjustified dismissal)(arrears of wages and holiday pay)(recovery of monies) ; Reimbursement of lost wages ($11,250) ; Compensation for humiliation etc ($7,500) ; Arrears of wages ($11,140.77) ; Arrears of holiday pay ($7,685.05) ; Recovery of monies ($2,385.20) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4A ; ERA s63A(3) ; ERA s124 ; ERA s128(2) ; ERA s130 ; ERA s131(1A) ; ERA s132(1) |
| Cases Cited | Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA) ; Wellington, Taranaki and Marlborough Clerical Administration and Related Workers IUOW v Greenwich t/a Becket Employment [1983] ACJ 965 (AC) ; Z v Y Ltd and A [1993] 2 ERNZ 469 (EmpC) |
| Number of Pages | 8 |
| PDF File Link: | 2016_NZERA_Wellington_126.pdf [pdf 167 KB] |