| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 73 |
| Hearing date | 23-Nov-16 |
| Determination date | 20 March 2017 |
| Member | V Campbell |
| Representation | D Jacobson ; M McGoldrick |
| Location | Hamilton |
| Parties | Weir v Kinloch Lodge Holdings Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTFIED DISMISSAL - Redundancy - Applicant claimed unjustifiably disadvantaged by respondent allowing applicant to be bullied by consultant - Applicant claimed unjustifiably dismissed by respondent - RECOVERY OF MONIES - Applicant sought recovery of work expenses - PENALTY - Applicant sought penalty for respondent’s breach of employment agreement for failure to reimburse work expenses - COUNTERCLAIM - BREACH OF CONTRACT - Respondent sought damages for applicants’ breach of contract for failure to work out notice - Sales Manager |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE: Applicant did not raise concerns about consultant’s alleged bullying with respondent. No unjustified disadvantage.;UNJUSTIFIED DISMISSAL: Applicant not aware of review of position. Respondent did not provide applicant with financial considerations on request. Respondent did not consider alternatives to redundancy. Respondent made decision to disestablish applicant’s position due to concerns over performance. No evidence of financial constraints. Redundancy not for genuine business reasons. Respondent unjustifiably dismissed. REMEDIES: No contributory conduct. Respondent to pay applicant $25,691 reimbursement of lost wages. $20,000 compensation appropriate. Interest payable.;RECOVERY OF MONIES: Employment agreement, although unexecuted, included reimbursement of work-related expenses. Applicant had responsibility to get to and from place of work so could not recover mileage costs for commuting. Applicant could recover work-related mileage, accommodation and meal expenses. Applicant’s purchase of software and office equipment was approved business expense. Laptop repair expense incurred by applicant while exercising her duties. Respondent to pay applicant $1,702 recovery of monies.;PENALTY: Dispute over expense claims and lack of written employment agreement meant penalty not appropriate. No penalty.;COUNTERCLAIM - BREACH OF CONTRACT: Respondent gave applicant inconsistent advice about whether she required to work out notice period. Lack of fully executed employment agreement. Application dismissed. |
| Result | Application granted (unjustified dismissal)(recovery of monies) ; Reimbursement of lost wages ($25,691.66) ; Interest (5%) Compensation for humiliation etc ($20,000) ; Recovery of monies ($1,702.35) ; Applications dismissed (penalty)(counterclaim - breach of contract) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 ; ERA s103A ; ERA s124 ; ERA s128(3) ; ERA s134 ; ERA s174E ; Holidays Act 2003 s39(1) ; Holidays Act 2003 s39(2) ; Judicature (Prescribed Rate of Interest) Order 2011 cl4 |
| Cases Cited | Grace Team Accounting Ltd v Brake [2013] NZEmpC 81;Grace Team Accounting Ltd v Brake [2014] NZCA 541, [2015] 2 NZLR 494;Xu v McIntosh [2004] 2 ERNZ 448 (EmpC) |
| Number of Pages | 25 |
| PDF File Link: | 2017_NZERA_Auckland_73.pdf [pdf 812 KB] |