| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2017] NZERA Christchurch 145 |
| Hearing date | 14 Feb 2017 - 15 Feb 2017 (2 days) |
| Determination date | 01 September 2017 |
| Member | D Appleton |
| Representation | I Kocaturk (in person) ; S Sansom |
| Location | Nelson |
| Parties | Kocaturk and Anor v Zara's Turkish Ltd |
| Other Parties | Kocaturk |
| Summary | JURISDICTION - Whether applicants had to raise personal grievance to claim unpaid wages - ARREARS OF WAGES AND HOLIDAY PAY - Applicants sought arrears of wages and holiday pay - RAISING GRIEVANCE - Whether applicants raised grievance within 90 days - UNJUSTIFIED DISMISSAL - Discrimination - Applicants claimed unjustifiably dismissed by respondent - COUNTERCLAIM - RECOVERY OF MONIES - Respondent sought recovery of loans made to applicants - Migrant workers |
| Abstract | AUTHORITY FOUND -;JURISDICTION: Recovery of unpaid wages does not fall within definition of personal grievance. Arrears claim could be characterised as a breach of contract, a claim under s 131 of the ERA 2000 or under minimum wage legislation. Applicants did not need to raise personal grievance in order to claim unpaid wages.;ARREARS OF WAGES AND HOLIDAY PAY: Can only consider wage arrears claims dating back six years. No power to exclude claims on basis of respondent’s lost records. Applicant’s evidence credible. Second applicant employee during disputed time. Applicants paid less than minimum wage. Applicants not paid holiday pay. Respondent to pay first applicant $16,194 arrears of wages and $4,766 arrears of holiday pay, and second applicant $35,882 arrears of wages and $5,652 arrears of holiday pay.;RAISING GRIEVANCE: Applicants asking for their jobs back on several occasions after dismissal sufficient to raise grievance. Respondents fully aware of applicants’ grievances.;UNJUSTIFIED DISMISSAL: First applicant chose not to work for respondent after second applicant was dismissed. No repudiation of employment agreement. First applicant resigned. No dismissal for first applicant. Respondent did not follow fair process when dismissing second applicant. Decision to dismiss because second respondent declared intention to have a baby is indirect discrimination by reason of sex. Dismissal of second applicant unjustified. REMEDIES: No contributory conduct. $13,338 reimbursement of lost wages. $7,000 compensation appropriate.;COUNTERCLAIM - RECOVERY OF MONIES: Loans made to applicants personally and not by the respondent. No recovery of monies. |
| Result | Applications granted (practice and procedure) (arrears of wages and holiday pay) ; Arrears of wages ($16,194.36)(first applicant) ($35,882.47)(second applicant) ; Arrears of holiday pay ($4,766.76)(first applicant) ($5,652.60)(second applicant) ; Application granted (unjustified dismissal - second applicant) ; Reimbursement of lost wages ($13,338) ; Compensation for humiliation etc ($7,000) ; Application dismissed (unjustified dismissal - first applicant) (counterclaim - recovery of monies) ; Disbursements in favour of applicants ($71.56)(filing fee) ; No order for costs |
| Main Category | Arrears |
| Statutes | ERA s6 ; ERA s103 ; ERA s103A ; ERA s124 ; ERA s128 ; ERA s131 ; ERA s142 ; Holidays Act 2003 s25 ; Holidays Act 2003 s28 ; Minimum Wage Act 1983 s6 ; Minimum Wage Act 1983 s7 ; Minimum Wage Act 1983 s9 |
| Cases Cited | Law v Board of Trustees of Woodford House [2014] NZEmpC 25, [2014] ERNZ 576 |
| Number of Pages | 25 |
| PDF File Link: | 2017_NZERA_Christchurch_145.pdf [pdf 258 KB] |