| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2017] NZERA Christchurch 55 |
| Hearing date | 31-Jan-17 |
| Determination date | 13 April 2017 |
| Member | H Doyle |
| Representation | D Carruthers ; T McGinn |
| Location | Christchurch |
| Parties | McSherry v Kumara Hotel Ltd t/a Theatre Royal Hotel Kumara |
| Summary | JURISDICTION - Whether valid 90 day trial period - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Dismissal - Applicant claimed unjustifiably disadvantaged by respondent’s actions - Applicant claimed unjustifiably dismissed by respondent - Operations manager |
| Abstract | AUTHORITY FOUND -;JURISDICTION: Applicant did not resign but was dismissed. Applicant previously in tripartite/triangular relationship with recruitment agency and respondent before signing trial period. Employment under triangular arrangement for short period and, in these circumstances, did not prevent employer from relying on trial period. However, applicant signed ‘interim’ employment agreement and was person intending to work. Applicant existing employee and could not be required to enter trial period. Respondent incorrectly advised applicant that trial period’s compulsory in all contracts and applicant relied on advice. Unfair bargaining for trial period. No valid trial period.;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Applicant not provided with hotel flat accommodation as provided by employment agreement. Applicant’s position was unilaterally changed to lesser role. Applicant unjustifiably disadvantaged. Applicant dismissed in reliance of invalid trail period. Applicant had no opportunity to comment. Process unfair. No substantive justification. Dismissal unjustified. REMEDIES: 15 per cent contributory conduct. Respondent to pay applicant $10,206 reimbursement of lost wages. $1,785 compensation for loss of accommodation and $11,900 for hurt and humiliation appropriate. |
| Result | Applications granted ; Contributory conduct (15%) ; Reimbursed of lost wages ($10,206.42) ; Compensation for loss of accommodation ($1,785) ; Compensation for humiliation etc ($11,900) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s5 ; ERA s6 ; ERA s6(1)(b)(ii) ; ERA s67A ; ERA s67A(3) ; ERA s67B ; ERA s67B(2) ; ERA s69 ; ERA s103A ; ERA s124 ; ERA s128(2) ; ERA s128(3) ; ERA s164 |
| Cases Cited | Blackmore v Honick Properties Ltd [2011] NZEmpC 152, [2011] ERNZ 445 (EmpC);McDonald v Ontrack Infrastructure Ltd [2010] NZEmpC 132, [2010] ERNZ 223;Smith v Stokes Valley Pharmacy (2009) Ltd [2010] NZEmpC 111, [2010] ERNZ 253 |
| Number of Pages | 24 |
| PDF File Link: | 2017_NZERA_Christchurch_55.pdf [pdf 239 KB] |