| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2016] NZERA Christchurch 227 |
| Hearing date | 13 to 15 Sept 2016 (3 days) |
| Determination date | 21 December 2016 |
| Member | H Doyle |
| Representation | J Goldstein, L Ryder ; K Glading |
| Location | Christchurch |
| Parties | Firman v Insyn Ltd t/a Synergy Hair Riccarton |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by suspension and warning for removing product – ARREARS OF HOLIDAY PAY – Applicant sought arrears of holiday pay – PENALTY – GOOD FAITH – Applicant sought penalty for respondent’s breach of good faith, breach of employment agreement (“EA”), failure to provide wage and time records and failure to pay holiday pay – COUNTERCLAIM – RECOVERY OF MONIES – Respondent sought recovery of cost of product taken without permission - Hairdresser AUTHORITY FOUND – |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Employment agreement did not contemplate suspension where disciplinary meeting had to be delayed. Applicant not given proper opportunity to comment on suspension. Suspension not what fair and reasonable employer could have done in all circumstances. Applicant unjustifiably disadvantaged by suspension. Process adopted to investigate allegations of taking product fair and reasonable. Respondent properly raised concerns, gave applicant opportunity to comment and considered explanation. Respondent reached conclusions about security footage open to fair and reasonable employer. Warning justified. Applicant not unjustifiably disadvantaged by warning. Applicant resigned due to unpleasant work environment and complaint made to police about removal of product. Respondent did not adopt deliberate course of conduct intended to make applicant resign but respondent’s actions constituted serious and repudiatory breaches. Resignation reasonably foreseeable in circumstances. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: 65 per cent contributory conduct. Respondent to pay applicant $2,147 reimbursement of lost wages. $200 compensation for loss of employer KiwiSaver contribution and holiday pay benefits appropriate. $2,800 compensation for humiliation etc. appropriate.ARREARS OF HOLIDAY PAY: Respondent failed to pay some annual holiday pay and alternative holiday pay. Respondent to pay applicant $2,938 arrears of holiday pay. Interest payable.PENALTY – GOOD FAITH: Respondent’s breach of good faith not deliberate or intentional. Breaches of EA by failing to provide safe workplace and failure to consult already remedied by personal grievance remedies. Only Labour Inspector able to bring penalty for failure to pay holiday pay. Respondent failed to provide wage and time records on request. Breach caused disadvantage to applicant. Records eventually provided almost in full. No other similar conduct. No evidence of respondent’s ability to pay. Need for deterrence. $3,000 penalty appropriate.COUNTERCLAIM – RECOVERY OF MONIES: No jurisdiction for Authority to consider claim for recovery of monies in situations of theft. Claim not employment related as employment relationship not necessary component of causes of actions. No recovery of monies. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal)(arrears of holiday pay)(penalty – good faith) ; Contributory conduct (65%) ; Reimbursement of lost wages ($2,147.86) ; Compensation for loss of benefit ($200.20) ; Compensation for humiliation etc ($2,800) ; Arrears of holiday pay ($2,938.69) ; Interest (5%) ; Penalty ($1,500)(payable to applicant)($1,500)(payable to Crown) ; Application dismissed (counterclaim – recovery of monies) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 ; ERA s4(1A)(b) ; ERA s4(1A)(c) ; ERA s103A ; ERA s103A(3) ; ERA s124 ; ERA s130(2) ; ERA s135(2)(b) ; ERA s136(2) ; ERA Second Schedule cl11 ; Holidays Act 2003 s75 ; Holidays Act 2003 s76 ; Judicature Act 1908 s87(3) |
| Cases Cited | JP Morgan Chase Bank NA v Lewis [2015] NZCA 255, [2015] 3 NZLR 618 ; Ramsay v Commissioner of Police [2009] ERNZ 81 (EmpC) ; Wellington, Taranaki and Marlborough Clerical Administration and Related Workers IUOW v Greenwich t/a Becket Employment [1983] ACJ 965 (AC) |
| Number of Pages | 31 |
| PDF File Link: | 2016_NZERA_Christchurch_227.pdf [pdf 334 KB] |