| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 256 |
| Hearing date | 22-Jun-17 |
| Determination date | 28 August 2017 |
| Member | N Craig |
| Representation | A Hansen ; no appearance |
| Location | Auckland |
| Parties | Hancock v Bryant and Anor |
| Other Parties | Elias Harley Gasu Ltd |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – PENALTY – Applicant sought penalty for the first respondent’s failure to provide written employment agreement – Builder |
| Abstract | AUTHORITY FOUND –;PRACTICE AND PROCEDURE: No written employment agreement (“EA”) provided. Various documents and communications between applicant and first respondent suggest first respondent employer. First respondent’s name detailed on training agreement as employer. Applicant employed by first respondent.;UNJUSTIFIED DISMISSAL: Respondent did not consult with applicant over redundancy. Dismissal undertaken with no prior warning. Redundancy was not genuine. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay $1,040 reimbursement of lost wages. $5,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Respondent failed to pay applicant for hours worked and holiday pay toward end of employment. First respondent to pay $1,137 arrears of wages and $1,801 arrears of holiday pay.;PENALTY: First respondent failed to provide applicant with EA. First respondent provided no explanation for failure to provide EA and seemed intentional. Applicant in vulnerable position because lack of experience in employment law and young. Respondent failed to participate and ameliorate effect of breach. Penalty appropriate for respondent’s non-compliance. $3,000 penalty appropriate. |
| Result | Applications granted; Reimbursement of lost wages ($1,040) ; Compensation for humiliation etc ($5,000) ; Arrears of wages ($1,137.50) ; Arrears of holiday pay ($1,801) ; Interest payable (5%) ; Penalty ($1,500)(payable to applicant) ($1,500)(payable to Crown) ; Disbursements in favour of applicant ($71.56)(filing fee) ; No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA Second Schedule cl12;ERA s6;ERA s63A;ERA s63A(3);ERA s103A(2);ERA s135(2)(a);ERA s136(2);Holidays Act 2003;Industrial Training and Apprenticeships Act 1992 s3;Minimum Wage Act 1983 |
| Cases Cited | Borsboom (Labour Inspector) v Preet Pvt Ltd & Warrington Discount Tobacco Ltd (Preet) [2016] NZEmpC 143, (2016) 10 NZELC 79-072;Martin v Bryant ERA Christchurch CA159/10, 9 August 2010;Mcdonald v Ontrack Infrastructure Ltd [2010] NZEmpC 32, (2010) 7 NZELR 257 |
| Number of Pages | 14 |
| PDF File Link: | 2017_NZERA_Auckland_256.pdf [pdf 255 KB] |