| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2017] NZERA Christchurch 10 |
| Hearing date | 20-Sep-16 |
| Determination date | 17 January 2017 |
| Member | P van Keulen |
| Representation | M McDonald v P King |
| Location | Christchurch |
| Parties | Black v Yankee Bourbon Company Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably disadvantaged by respondent’s actions - Applicant claimed unjustifiably dismissed by respondent - Whether valid 90 day trial period clause - ARREARS OF WAGES - Applicant sought arrears of KiwiSaver - PENALTY - Applicant sought penalty for respondent’s failure to retain signed employment agreement - Factory Worker |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Deductions from applicant’s final pay justified per consent clause in employment agreement. No evidence to support submission that applicant on KiwiSaver contribution holiday. Applicant unjustifiably disadvantaged by respondent’s failure to make KiwiSaver contributions. Applicant’s inquiry whether applicant should come in next day put respondent on notice that applicant had not resigned. Respondent effected dismissal. No signed copy of employment agreement evidencing acceptance of trial period by applicant, but this not fatal to reliance on trial period. Applicant’s acceptance of dismissal did not mean applicant did not make trial period clause valid. Alleged trial period clause not labelled as trial period provision. Was not clear what period applicant will be subject to trial period. Trial clause invalid. Dismissal unjustified. REMEDIES: Applicant performed poorly at work and deliberately ignored instructions. Applicant used company vehicle for personal matters despite instruction not to. Applicant used internet during work time excessively including accessing pornography. Behaviour outrageous and disgraceful. 100 per cent contributory conduct.;ARREARS OF WAGES: Respondent to pay applicant $240 arrears of KiwiSaver.;PENALTY: Penalty claim not pleaded in statement of problem. Employment agreement was signed but not retained, in these circumstances penalty not appropriate. No penalty. |
| Result | Applications partially granted (unjustified disadvantaged) (unjustified dismissal) ; Contributory conduct (100%) ; Application granted (arrears of wages) ; Arrears of wages ($240.79) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s67A(2) - ERA s103A - ERA s124 - ERA s128 |
| Cases Cited | Baxter v Lighthouse ECE Ltd [2016] NZERA Auckland 283;Blackmore v Honick Properties Ltd [2011] NZEmpC 152, [2011] ERNZ 445;Clark v Lighthouse ECE Ltd [2016] NZERA Auckland 281;Du Plooy v Lighthouse ECE Ltd [2016] NZERA Auckland 282;Hiha v Crane Distribution NZ Ltd [2012] NZERA Auckland 351;Honey v Lighthouse ECE Ltd [2016] NZERA Auckland 284;Lawson v New Zealand Transport Agency [2016] NZEmpC 165;Lumb-Vaipapa v B & Y Trust Co 2015 Ltd [2015] NZERA Christchurch 187;Modern Transport Engineers (2002) Ltd v Phillips [2016] NZEmpC 68;New Zealand Cards Ltd v Ramsay [2012] NZEmpC 51;Salt v Fell [2008] NZCA 128, [2008] 3 NZLR 193;X v Auckland District Health Board [2007] ERNZ 66 (EmpC);Xtreme Dining Ltd v Dewar [2016] NZEmpC 136, (2016) 10 NZELC 79-069 |
| Number of Pages | 19 |
| PDF File Link: | 2017_NZERA_Christchurch_10.pdf [pdf 228 KB] |