| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2017] NZERA Christchurch 73 |
| Hearing date | 3-Mar-17 |
| Determination date | 10 May 2017 |
| Member | D Appleton |
| Representation | A Kersjes ; P Richardson |
| Location | Christchurch |
| Parties | Flannagan v PMR Holdings Ltd |
| Summary | JURISDICTION - Whether applicant employee or volunteer - Whether applicant casual or permanent employee - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Dismissal - Applicant claimed unjustifiably disadvantaged by respondent’s non-payment of holiday and statutory holiday pay and non-provision of employment agreement - Respondent claimed unjustifiably dismissed by respondent - ARREARS OF HOLIDAY PAY - Applicant sought arrears of holiday pay - PENALTY - Applicant sought penalty for respondent’s failure to provide employment agreement and non-payment of holiday and statutory holiday pay - COUNTERCLAIM - RECOVERY OF MONIES - Respondent sought recovery of loss of income on rent, cost of repairs and compensation for hurt and humiliation - Chef and Cleaner |
| Abstract | AUTHORITY FOUND -;JURISDICTION: Expectation that applicant would be given and do work and receive reward for that work. Applicant given comprehensive list of duties. Applicant’s contribution to success of enterprise non-trivial. Real nature of relationship strongly indicated employment relationship. Applicant employee not volunteer. Clear and ongoing mutual obligation between parties. Applicant employed on permanent basis.;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Applicant unjustifiably disadvantaged by non-payment of correct holiday pay and statutory holiday pay and non-provision of appropriate employment agreement. Written warnings shown to Authority created after dismissal and never received by applicant. Mandatory procedural requirements under s103A not met. Unable to determine dismissal substantively justified as no disciplinary procedure followed at all. Dismissal unjustified. REMEDIES: 30 per cent contributory conduct. Respondent to pay applicant $3,355 reimbursement of lost wages. $8,400 compensation appropriate.;ARREARS OF HOLIDAY PAY: Respondent to pay applicant $445 arrears of holiday pay. Respondent failed to pay applicant time and a half for work on public holiday. Respondent failed to provide applicant paid alternative holiday for work on statutory holiday. Respondent to pay applicant $174.25 arrears of statutory holiday pay.;PENALTY: Sufficient doubt whether an employment agreement provided. Non-payment of holiday and statutory holiday pay not wilful. Punishment and deterrence not appropriate. No penalty;COUNTERCLAIM - RECOVERY OF MONIES: Too late to raise counterclaim in closing submissions. No jurisdiction to consider claims arising from occupation of room. Award of compensation for hurt and humiliation only available to employees. No recovery of monies. |
| Result | Applications granted (jurisdiction)(practice and procedure)(unjustified disadvantage - unjustified dismissal)(arrears of holiday pay) ; Contributory conduct (30%) ; Reimbursement of lost wages ($3,355.68) ; Compensation for humiliation etc ($8,400) ; Arrears of holiday pay ($445.43) ; Arrears of statutory holiday pay ($174.25) ; Applications dismissed (penalty)(counterclaim - recovery of monies) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s6 ; ERA s6(1)(c)(i) ; ERA s6(1)(c)(ii) ; ERA s28 ; ERA s65 ; ERA s65(4) ; ERA s103A ; ERA s114(1) ; ERA s128 ; Holidays Act 2003 s23 ; Holidays Act 2003 s45A ; Holidays Act 2003 s50 ; Holidays Act 2003 s56 ; Holidays Act 2003 s75 |
| Cases Cited | Bay of Plenty District Health Board v Rahiri [2016] NZEmpC 67;Brook v Macown [2014] NZEmpC 79;Bryson v Three Foot Six Ltd (No 2) [2005] NZSC 34;Creedy v Commissioner of Police [2006] ERNZ 517 (EmpC);Jinkinson v Oceania Gold (NZ) Ltd [2009] ERNZ 225 (EmpC);JP Morgan Chase Bank NA v Lewis [2015] NZCA 255;Kirby v New Zealand China Friendship Society [2015] NZEmpC 189;Koia v Carlyon Holdings Ltd [2001] ERNZ 585 (EmpC);Tan v Yang [2014] NZEmpC 65;Three Foot Six Ltd v Bryson [2004] 2 ERNZ 526 (CA) |
| Number of Pages | 22 |
| PDF File Link: | 2017_NZERA_Christchurch_73.pdf [pdf 186 KB] |