| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 18 |
| Hearing date | 20-Dec-16 |
| Determination date | 23 January 2017 |
| Member | R Arthur |
| Representation | SJ Neville ; R White |
| Location | Auckland |
| Parties | Sherwood v Project Clothing Pty Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy - Serious Misconduct – 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 phone and internet costs – BREACH OF CONTRACT – Applicant sought payment of redundancy compensation and car and clothing allowances - PENALTY – Applicant sought penalty for respondent’s breaches of employment agreement (“EA”) - General Manager |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISMISSAL: Redundancy for genuine business reasons. Respondent failed to provide applicant with relevant information or give applicant to comment before making decision to dismiss. Insufficient evidence to substantiate respondent’s allegations of serious misconduct. Respondent did not put allegations to applicant or give applicant chance to respond before making decision to dismiss. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $4,616 reimbursement of lost wages. $18,000 compensation appropriate.ARREARS OF WAGES AND HOLIDAY PAY: Respondent did not pay notice period or holiday pay in full. Respondent to pay applicant $18,464 arrears of wages and $1,477 arrears of holiday pay, less any amount already paid. Interest payable.RECOVERY OF MONIES: Applicant entitled to be reimbursed for mobile phone and wifi costs. Respondent to pay applicant $298 recovery of monies. Interest payable.BREACH OF CONTRACT: Applicant’s evidence did not sufficiently establish entitlement to car and clothing allowances under EA. EA provided for payment of redundancy compensation. Respondent to pay applicant $18,464 redundancy compensation. Interest payable.PENALTY: Respondent failed to pay applicant wages and redundancy compensation in breach of express terms of EA. Breaches deliberate. Applicant vulnerable due to loss of job. No remorse shown. $5,000 penalty appropriate. |
| Result | Applications granted ; Reimbursement of lost wages ($4,616) ; Compensation for humiliation etc ($18,000) ; Arrears of wages ($18,464) ; Arrears of holiday pay ($1,477.12) ; Recovery of monies ($298) ; Redundancy compensation ($18,464) ; Interest (5%) ; Penalty ($5,000)(payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c) ; ERA s124 ; ERA s134 ; ERA s174E ; Judicature (Prescribed Rate of Interest) Order 2011 |
| Cases Cited | Fagotti v Acme Ltd [2015] NZEmpC 135, (2015) NZELR 1 ; Grace Team Accounting Ltd v Brake [2014] NZCA 541, [2015] 2 NZLR 494 ; Hall v Dionex Pty Ltd [2015] NZEmpC 29 ; PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC) |
| Number of Pages | 16 |
| PDF File Link: | 2017_NZERA_Auckland_18.pdf [pdf 272 KB] |