| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2017] NZERA Christchurch 40 |
| Hearing date | 26 Oct 2016 - 28 Oct 2016 (3 days) |
| Determination date | 22 March 2017 |
| Member | C Hickey |
| Representation | T Jeffcott ; A Sharma |
| Location | Nelson |
| Parties | Robson Fishing Partnership and/or Impulse Fishing Co Ltd v Smith |
| Summary | BREACH OF CONTRACT - Applicant sought damages for loss incurred by respondent’s failure to give two months’ notice, breach of good faith and failure to act safely at all times - COUNTERCLAIM - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Abandonment - Respondent claimed unjustifiably disadvantaged by applicant’s failure to provide copy of employment agreement and by being underpaid - Respondent claimed unjustifiably dismissed by applicant - COUNTERCLAIM - BREACH OF CONTRACT - Respondent sought damages for loss resulting from breach of employment agreement - COUNTERCLAIM - PENALTY - Respondent sought penalty for applicant’s failure to provide copy of his employment agreement upon request, failure to keep wage and time records, breach of good faith and breaches of Holidays Act |
| Abstract | AUTHORITY FOUND -;BREACH OF CONTRACT: Applicant dismissed and did not fail to give two months’ notice. Applicant did not prove that applicant breached good faith or breached his duty to act safely. No breach of contract.;COUNTERCLAIM - UNJUSTIFIED DISMISSAL: Respondent attending course and not absent without notification. Applicant did not attempt to contact respondent before concluding abandonment occurred. Respondent dismissed. Applicant did not tell respondent it considered him to have misled other staff and insufficient investigation into allegations. Respondent did not have reasonable opportunity to respond to allegations. Dismissal procedurally unfair. Respondent openly and deliberately defied instruction to not attend course which could result in dismissal. Conclusion that respondent intentionally mislead staff not reasonable. Applicant did not raise concerns about bird abuse with respondent. Bird abuse, if true, could justify dismissal. Insufficient evidence that respondent encouraged cruelty to birds or failed to ensure crew followed instructions in relation to birds. Dismissal unjustified. Remedies to be determined in future determination.;COUNTERCLAIM - UNJUSTIFIED DISADVANTAGE: Even if applicant denied respondent copy of his employment agreement does not necessarily result in unjustified disadvantage. Applicant had opportunity to consider employment agreement before signing it. Respondent could not have reasonable expectation that when not acting as skipper he would be paid as skipper. No unjustified disadvantage.;COUNTERCLAIM - PENALTY: Respondent did not apply for penalty for failure to provide employment agreement, breach of good faith and breach of Holidays Act until more than 12 months after claims came to his attention. Applicant failed to provide wage and time records. Whether penalty appropriate and quantum to be determined in future determination. |
| Result | Application granted (counterclaim - unjustified dismissal) ; Application partially granted (counterclaim - penalty) ; Application dismissed (breach of contract) (unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 ; ERA s64(3) ; ERA s103A(3) ; ERA s124 ; ERA s130 ; ERA s135(5) ; ERA s174C(3)(b) ; ERA s174C(4) ; Fisheries Act 1996 s91 ; Holidays Act 2003 s8 ; Holidays Act 2003 s29 ; Holidays Act 2003 s32 ; Holidays Act 2003 s76 |
| Cases Cited | Borsboom v Preet PVT Ltd [2016] NZEmpC 143, (2016) 10 NZELC 79-072;New Zealand Printing and Related Trades IUOW v Clark and Matheson Ltd [1984] ACJ 283 (AC);New Zealand (with exceptions) Food Processing IUOW v Unilever New Zealand Ltd (1990) ERNZ Sel Cas 582 (LC);Sky Network Television Ltd v Duncan [1998] 3 ERNZ 917 (CA);Xtreme Dining Ltd v Dewar [2016] NZEmpC 136, (2016) 10 NZELC 79-069 |
| Number of Pages | 33 |
| PDF File Link: | 2017_NZERA_Christchurch_40.pdf [pdf 403 KB] |