| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 41 |
| Hearing date | 17 and 18 Jan 2017 (2 days) |
| Determination date | 21 February 2017 |
| Member | E Robinson |
| Representation | A Hope ; D Hayes |
| Location | Hamilton |
| Parties | Hartstone v Enviro Scientific Group Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal - Applicant claimed unjustifiably disadvantaged by suspension - Applicant claimed unjustifiably dismissed by respondent - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Deductions from wages - Manager |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: No breach of duty by respondent that caused applicant to leave employment. No dismissal. Respondent did not have contractual right to suspend applicant. Respondent did not give applicant relevant information about decision to suspend or give applicant opportunity to comment prior to decision being made. Suspension not justified on grounds of safety. Applicant unjustifiably disadvantaged by suspension. REMEDIES: 20 per cent contributory conduct. Respondent to pay applicant $1,914 reimbursement of lost wages. $2,400 compensation appropriate.ARREARS OF WAGES AND HOLIDAY PAY: Respondent approved overtime payments to applicant but applicant failed to prove hours worked. Respondent incorrectly deducted wages from applicant’s final pay. Applicant not paid for some public holidays worked or paid holiday pay on termination of employment. Respondent to pay applicant $1,640 arrears of wages and $1,681 arrears of holiday pay. |
| Result | Applications granted (unjustified disadvantage)(arrears of wages and holiday pay) ; Reimbursement of lost wages ($1,914.83) ; Compensation for humiliation etc ($2,400) ; Arrears of wages ($1,640.55) ; Arrears of holiday pay ($1,681.23) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 ; ERA s4(1A)(c)(i) ; ERA s4(1A)(c)(ii) ; ERA s47 ; ERA s103(1)(b) ; ERA s124 ; Holidays Act 2003 s25 ; Holidays Act 2003 s56(1) ; Holidays Act 2003 s56(2) ; Holidays Act 2003 s56(2)(ii) |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union of Workers Inc [1994] 2 NZLR 415 (CA) ; Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA) ; Chief Executive of the Department of Inland Revenue v Buchanan [2005] ERNZ 767 (CA) ; Cooke v Tranz Rail Ltd [1996] 1 ERNZ 610 (EmpC) ; Samu v Air New Zealand Ltd [1995] 1 ERNZ 636 (CA) ; Tawhiwhirangi v Attorney-General [1993] 2 ERNZ 546 (EmpC) ; Wellington Road Transport etc IUOW v Fletcher Construction Co Ltd [1983] ACJ 653 (AC) ; Wellington, Taranaki and Marlborough Clerical Administration and Related Workers IUOW v Greenwich [1983] ACJ 965 (AC) |
| Number of Pages | 24 |
| PDF File Link: | 2017_NZERA_Auckland_41.pdf [pdf 336 KB] |