| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 247 |
| Hearing date | 9 Aug 2017 - 10 Aug 2017 (2 days) |
| Determination date | 22 August 2017 |
| Member | J Trotman |
| Representation | E Latimer-Bell ; E Kuo |
| Location | Auckland |
| Parties | Talipope v Truck Systems Logistics Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably dismissed by respondent - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay - RECOVERY OF MONIES – Applicant sought recovery of wages unlawfully deducted by respondent - PENALTY – Applicant sought penalty for respondent’s breach of good faith and unlawful deductions from wages - COUNTERCLAIM – RECOVERY OF MONIES – Respondent sought recovery of wages overpaid to applicant and balance of fines owed by applicant – Truck Driver |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Process leading to dismissal was defective. No evidence that respondent met any mandatory considerations set out in s103A(3). Dismissal unjustified. REMEDIES: 30 per cent contributory conduct. Respondent to pay applicant $2,016 reimbursement of lost wages. $8,400 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Respondent to pay applicant $567 arrears of wages and $45 arrears of holidays pay.;RECOVERY OF MONIES: Deductions unlawful. Respondent to pay applicant $1,998 recovery of monies.;PENALTY: No penalty payable for breach of good faith. Respondent unlawfully deducted fines and hours worked on twelve occasions. Breaches not deliberate or calculated. Sum deducted significant for applicant. No mitigating factors. No evidence of respondent’s ability to pay. $6,000 penalty appropriate.;COUNTERCLAIM - RECOVERY OF MONIES: Not satisfied applicant overpaid or responsible for fines. No recovery of monies. |
| Result | Applications granted (unjustified dismissal)(arrears of wages and holiday pay)(recovery of monies)(penalty – unlawful deductions) ; Reimbursement of lost wages ($2,016) ; Compensation for humiliation etc ($8,400) ; Arrears of wages ($567) ; Arrears of holiday pay ($45.36) ; Recovery of monies ($1,998.76) ; Penalty ($4,500)(payable to applicant)($1,500)(payable to crown) ; Applications dismissed (penalty – good faith)(counterclaim – recovery of monies) |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1) ; ERA s103A ; ERA s103A(3) ; ERA s103A(3)(a) ; ERA s103A(3)(b) ; ERA s103A(3)(c) ; ERA s103A(3)(d) ; ERA s103A(5) ; ERA s124 ; ERA 174E ; Wages Protection Act s4 ; Wages Protection Act 1983 s13 ; Costs reserved |
| Cases Cited | Allen v Transpacific Industries Group Ltd (t/a “Medismart Ltd”) [2009] 6 NZELR 530 (EmpC);Borsboom v Preet PVT Limited [2016] NZEmpC 143;BP Oil NZ Ltd v Northern Distribution Union [1992] 3 ERNZ 483 (CA);Harris v The Warehouse Ltd [2014] NZEmpC 188, [2014] ERNZ 480;Jonas v Menefy Trucking Ltd [2013] NZEmpC 200, [2013] ERNZ 651;Tupu v Romano’s Pizzas (Wellington) Ltd [1995] 2 ERNZ 266 (EmpC);Xtreme Dining Ltd v Dewar [2016] NZEmpC 136 |
| Number of Pages | 24 |
| PDF File Link: | 2017_NZERA_Auckland_247.pdf [pdf 318 KB] |