| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2017] NZERA Christchurch 123 |
| Hearing date | 19-Apr-16 |
| Determination date | 12 July 2017 |
| Member | P van Keulen |
| Representation | A Sharma ; L Acland |
| Location | Nelson |
| Parties | PCA v David Orsbourn Medical Services Ltd t/a Enhanceskin |
| Summary | JURSIDICTION – Whether applicant employee – UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed by respondent – PENALTY – Applicant sought penalty for respondent’s breach of good faith – Administrator |
| Abstract | AUTHORITY FOUND –;JURISDICTION: Respondent made offer of employment. Applicant accepted offer by signing Employment Agreement (“EA”). Applicant was a person intending to work. The fact that applicant had not commenced work does not affect existing EA. Applicant employee.UNJUSTIFIED DISMISSAL: Respondent failed to follow a procedurally fair dismissal process. Respondent failed to properly understand what happened during the period of employment not disclosed by applicant. Arguable that a fair and reasonable employer would not have concluded the applicant misrepresented employment history. Respondent not estopped by relying on applicant’s acceptance of withdrawal claim. Dismissal unjustified. REMEDIES: 25% contributory conduct. Respondent to pay applicant $2,246 reimbursement of lost wages. $8,000 compensation appropriate. PENALTY: Action complained of not a result of direct instruction from respondent performed by an agent. Respondent did not intend to breach duty of good faith. No penalty. |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages ($2,246.40) ; Compensation for humiliation etc ($8,000) ; Costs reserved ; Application dismissed (penalty) |
| Main Category | Personal Grievance |
| Statutes | ERA s4A;ERA s4(1A);ERA s6;ERA s7;ERA Second Schedule cl10;ERA s103A(3);ERA s124;ERA s128;ERA s174E |
| Cases Cited | Baker v Armourguard Security Ltd [1998] 1 ERNZ 424 (EmpC);Bell v Lever Bros Ltd [1931] UKHL 2, [1932] AC 161;Harris v TSNZ Pulp and Paper Maintenance Ltd [2015] NZEmpC 43;King v Strait Shipping Ltd EmpC Wellington WEC5/96, W6/96, 8 February 1996;Murray v Attorney-General [2002] 1 ERNZ 184 (EmpC);New Zealand Amalgamated Engineering etc IUOW v Vehicle Assemblers of New Zealand Ltd [1990] 3 NZILR 792 (LC);Xtreme Dining Ltd v Dewar [2016] NZEmpC 136 |
| Number of Pages | 16 |
| PDF File Link: | 2017_NZERA_Christchurch_123.pdf [pdf 163 KB] |