| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2017] NZERA Christchurch 119 |
| Hearing date | 4-Jul-17 |
| Determination date | 06 July 2017 |
| Member | David Appleton |
| Representation | M McDonald ; J Dawson |
| Location | Christchurch |
| Parties | Clark v Canterbury Butynol Fixers Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably disadvantaged by respondent not issuing Employment Agreement (“EA”) and as a consequence endured bullying and a flawed dismissal process – Applicant claimed unjustifiably dismissed by respondent – ARREARS WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – PENALTY – Applicant sought penalty for respondent’s failure to provide EA – Waterproofing Installation Specialist |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE: Applicant claimed unjustified disadvantage for the same reasons given for unjustified dismissal. Authority does not have jurisdiction to hear disadvantage claim for the same action stipulated for unjustified dismissal. No unjustified disadvantage.;UNJUSTIFIED DISMISSAL: Applicant was not given opportunity to respond and explain matters leading up to dismissal. Respondent followed substantively and procedurally defective process. Dismissal unjustified. REMEDIES: 50 per cent contributory conduct. $5,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Respondent to pay applicant $5,158 arrears of wages and $412 arrears of holiday pay.;PENALTY: One-off and incidental breach warranted 75% reduction. The fact that respondent's company was small warrants further 20% reduction. $500 penalty appropriate. |
| Result | Applications granted (unjustified dismissal)(arrears of wages and holiday pay)(penalty) ; Contributory conduct (50%); Reimbursement of wages ($5,158.11) ; Arrears of holiday pay ($412.65) ; Compensation for humiliation etc ($5,000) ; Penalty ($500)(payable to Crown) ; Costs reserved ; Application dismissed (unjustified disadvantage) |
| Main Category | Personal Grievance |
| Statutes | ERA s65;ERA s65(4);ERA s103A(1);ERA s103A(2);ERA s128(1);ERA s128(2);ERA s128(3);ERA s124 |
| Cases Cited | Borsboom v Preet PVT Ltd [2016] NZEmpC 143 |
| Number of Pages | 13 |
| PDF File Link: | 2017_NZERA_Christchurch_119.pdf [pdf 192 KB] |