| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2016] NZERA Christchurch 208 |
| Hearing date | 8-Nov-16 |
| Determination date | 29 November 2016 |
| Member | C Hickey |
| Representation | R Boulton ; no appearance |
| Location | Christchurch |
| Parties | Bennett v Dean Kane Langdon t/a DKL Construction |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay - PENALTY – Applicant sought penalty for failure to pay wages in full, failure to provide written employment agreement (“EA”) and breach of duty of good faith – No appearance for respondent – Painter and decorator |
| Abstract | AUTHORITY FOUND -UNJUSTIFIED DISMISSAL: Respondent deducted money from applicant’s wages in response to allegations that applicant doing private job for friend of respondents. Respondent did not provide applicant with work and stopped paying applicant. Respondent did not give applicant information about future of employment or when applicant next paid. Respondent breached essential terms of EA. Reasonably foreseeable that applicant would resign. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $7,560 reimbursement of lost wages. $8,000 compensation appropriate.ARREARS OF WAGES AND HOLIDAY PAY: Some wages and holiday pay still outstanding. Respondent to pay applicant $390 arrears of wages and holiday pay.PENALTY: Respondent’s failure to respond adequately to applicant’s inquiries and failure to attend mediation not breaches of good faith. Respondent failed to provide written EA and withheld wages from applicant. Two breaches for penalty purposes. Failure to provide EA intentional or negligent and disadvantaged employee, although applicant not particularly vulnerable. Failure to pay applicant in full deliberate and caused applicant stress. Applicant sole breadwinner so particularly vulnerable, although wages largely paid after end of employment. No evidence of respondent’s financial ability to pay. $3,500 penalty appropriate. |
| Result | Applications granted ; Reimbursement of lost wages ($7,560) ; Compensation for humiliation etc ($8,000) ; Arrears of wages and holiday pay ($390) ; Penalty ($2,500)(payable to Crown)($1,000)(payable to applicant) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 ; ERA s4A ; ERA s63A ; ERA s65 ; ERA s128(2) ; ERA s135(2)(a) ; ERA s136(1) ; ERA s136(2) ; ERA s173(2) ; Holidays Act 2003 s25 ; Wages Protection Act 1983 s4 ; Wages Protection Act 1983 s13(1) |
| Cases Cited | Borsboom v Preet Pvt Ltd [2016] NZEmpC 143 ; Otago Hotel etc IUOW v Pacific Park Motor Inn Ltd (t/a Pacific Park Dunedin) [1989] 1 NZILR 175 (LC) |
| Number of Pages | 13 |
| PDF File Link: | 2016_NZERA_Christchurch_208.pdf [pdf 361 KB] |