| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2016] NZERA Christchurch 201 |
| Hearing date | 18 Aug 2016 - 19 Aug 2016 (2 days) |
| Determination date | 07 November 2016 |
| Member | C Hickey |
| Representation | L Ryder ; R Thompson |
| Location | Christchurch |
| Parties | Harman v Canterbury Heavy Haulage Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by failure to pay wages - Applicant claimed unjustifiably dismissed by respondent – PENALTY – Applicant sought penalty for respondent’s failure to pay applicant on time and failure to keep wages and time records - Driver |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent did not interview some witnesses during investigation. Applicant not made fully aware of evidence relied on by respondent to make decision to dismiss or given opportunity to address decision-maker directly. Respondent did not take into account possibility of bias in key witness’ favour. Dismissal unjustified. Respondent not entitled to withhold applicant’s pay. Applicant not able to draw on one payment for some time as had been paid by cheque. Applicant financially disadvantaged. Fair and reasonable employer could not have acted as respondent did. Applicant unjustifiably disadvantaged. REMEDIES: 33% contributory conduct. $8,000 compensation appropriate.PENALTY: Respondent not justified in withholding pay because applicant had not filled in timesheet correctly. Respondent did not explain why applicant not paid on time on other occasion. Breaches not technical or inadvertent. Little remorse shown. Need for deterrence. Lack of records hampered applicant’s ability to work out whether paid correctly. $6,000 penalty appropriate. |
| Result | Applications granted ; Contributory conduct (33%) ; Compensation for humiliation etc ($8,000) ; Penalty ($1,000)(payable to applicant)($5,000)(payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(3) ; ERA s130 ; Wages Protection Act 1983 s4 |
| Cases Cited | Xu v McIntosh [2004] 2 ERNZ 448 (EmpC) |
| Number of Pages | 16 |
| PDF File Link: | 2016_NZERA_Christchurch_201.pdf [pdf 218 KB] |