| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2017] NZERA Christchurch 13 |
| Hearing date | 14-Oct-16 |
| Determination date | 24 January 2017 |
| Member | C Hickey |
| Representation | B Nevell ; J Nadan |
| Location | Dunedin |
| Parties | May-Ellis v Advance International Cleaning Systems (NZ) Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably disadvantaged by respondent’s failure to allow her to return to work - Applicant claimed unjustifiably dismissed by respondent – Return from parental leave - PENALTY – GOOD FAITH – Applicant sought penalty for respondent’s breach of good faith – Customer service |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Credible suspicion that respondent not fully committed to applicant’s return to previous position but not proved that respondent failed to keep applicant’s role open. Respondent did not breach parental leave obligations. Respondent effectively suspended applicant by insisting that matters of concern be resolved before applicant’s return to work. Applicant not paid during suspension despite contractual obligation for respondent to do so. Applicant unjustifiably disadvantaged. Respondent did not undertake sufficient investigation into concerns, raise all concerns with applicant or give applicant reasonable opportunity to respond. Decision to dismiss pre-determined. Insufficient substantive reason to dismiss applicant. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $7,731 reimbursement of lost wages. $231 compensation for loss of employer KiwiSaver contribution benefit appropriate. $15,000 compensation for humiliation etc appropriate.PENALTY – GOOD FAITH: Respondent did not act in good faith. Failure not deliberate. Applicant compensated by personal grievance remedies. No penalty. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal) ; Reimbursement of lost wages ($7,731.54) ; Compensation for loss of benefit ($231.95) ; Compensation for humiliation etc ($15,000) ; Application dismissed (penalty – good faith) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A ; ERAS 103A(3) ; ERA s124 ; ERA s128(2) ; ERA s128(3) ; Parental Leave and Employment Protection Act 1987 s47 ; Parental Leave and Employment Protection Act 1987 s54 |
| Cases Cited | New Zealand Fire Service Commission v Reid [1998] 2 ERNZ 250 (EmpC) |
| Number of Pages | 22 |
| PDF File Link: | 2017_NZERA_Christchurch_13.pdf [pdf 253 KB] |