| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 313 |
| Hearing date | 27-Sep-17 |
| Determination date | 10 October 2017 |
| Member | A Fitzgibbon |
| Representation | C Matter ; J Sandhu |
| Location | Hamilton |
| Parties | Borisov v MSGS Holdings Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Abandonment – Applicant claimed unjustifiably dismissed by respondent – ARREARS OF HOLIDAY PAY – Applicant sought arrears of holiday pay – PENALTY – Applicant sought penalty for respondent’s breach of the Holidays Act 2003 – Pizza Maker |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant did not abandon employment but was dismissed by respondent. Respondent did not raise issues with applicant prior to dismissal. Respondent did not follow fair process when deciding to dismiss applicant and did not act as a fair and reasonable employer. Dismissal unjustified. REMEDIES: 20 per cent contributory conduct. Respondent to pay applicant $5,142 reimbursement of lost wages. $6,400 compensation appropriate.;ARREARS OF HOLIDAY PAY: Applicant not paid for public holidays that would otherwise have been working day. Respondent to pay applicant $252 arrears of holiday pay.;PENALTY: Respondent breached Holidays Act 2003 by failing to pay applicant for public holidays that would otherwise have been working day. Deterrence necessary. Breach deliberate. $1,000 penalty appropriate. |
| Result | Applications granted ; Contributory conduct (20%) ; Reimbursement of lost wages ($5,142.38) ; Compensation for humiliation etc ($6,400) ; Arrears of holiday pay ($252) ; Penalty ($1,000)(payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A ; ERA s124 ; ERA s128 ; ERA s128(2) ; ERA s136 ; ERA s174E ; Holidays Act 2003 s46 ; Holidays Act 2003 s49 ; Holidays Act 2003 s55 ; Holidays Act 2003 s75 |
| Cases Cited | Borsboom v Preet PVT Ltd [2016] NZEmpC 143;Tan v Yang [2014] NZEmpC 65 |
| Number of Pages | 14 |
| PDF File Link: | 2017_NZERA_Auckland_313.pdf [pdf 222 KB] |