| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2017] NZERA Christchurch 191 |
| Hearing date | 3 May 2017 - 4 May 2017 (2 days) |
| Determination date | 09 November 2017 |
| Member | C Hickey |
| Representation | R Thompson ; P Tucker |
| Location | Christchurch |
| Parties | Ge v Y & S Holdings Ltd |
| Summary | JURISDICTION – Whether valid 90 day trial period – Whether applicant employee or volunteer during upskilling period – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed by respondent – PENALTY – Applicant sought penalty for respondent’s failure to provide wage and time records – Live in administrator/ trainee manager |
| Abstract | AUTHORITY FOUND –;JURISDICTION: Parties entered into individual employment agreement (“IEA”) after applicant started working for respondent. Applicant not subject to valid trial period. Applicant performed basic tasks most of the time during upskilling period. Applicant employee during upskilling period.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant entitled to payment for work during upskilling period. Respondent to pay applicant $1,460 arrears of wages and $116 arrears of holiday pay for upskilling period. Applicant’s freedom significantly restrained by responsibilities between rostered shifts so to amount to work. Respondent to pay applicant $2,516 arrears of wages and $201 arrears of holiday pay for unpaid hours. Respondent re-employed applicant following termination of employment. Applicant entitled to payment for each hour worked. Respondent to pay applicant $1,823 arrears of wages and $153 arrears of holiday pay for period of re-employment. Interest payable.;UNJUSTIFIED DISMISSAL: Respondent failed to undertake fair process in dismissing applicant. Applicant not given fair opportunity to respond to complaints. Applicant not adequately informed of respondent’s concerns. Procedural defects not minor. Dismissal unjustified. REMEDIES: 30 per cent contributory conduct. Respondent to pay applicant $6,217 reimbursement of lost wages. $8,400 compensation appropriate.;PENALTY: Failure to keep and supply wage and time records serious breach. Applicant vulnerable as live-in employee. $2,000 penalty appropriate. |
| Result | Applications granted ; Contributory conduct (30%) ; Reimbursement of lost wages ($6,217.30) ; Compensation for humiliation etc ($8,400) ; Arrears of wages ($5,800.86) ; Arrears of holiday pay (471.75) ; Interest (5%) ; Penalty ($2,000)(payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s6 ; ERA s103A(3) ; ERA s123(1)(b) ; ERA s124 ; ERA s128(2) ; ERA s128(3) ; ERA s130 ; ERA s132 ; ERA s133A ; ERA s135 ; ERA s136 ; ERA s 174C(3)(b) ; ERA s 174C(4) ; ERA Second Schedule cl11 ; Judicature Act 1908 s87(3) ; Minimum Wage Act 1983 s6 ; Minimum Wage Act s7(1) ; Wages Protection Act 1983 s7 |
| Cases Cited | Borsboom v Preet PVT Ltd [2016] NZEmpC 143;Hellier v Cedar Motor Lodge Ltd [2013] NZERA Christchurch 259;Idea Services Ltd v Dickson [2009] ERNZ 116 (EmpC);Idea Services Ltd v Dickson [2011] NZCA 14;Salad Bowl Ltd v Howe-Thornley [2013] NZEmpC 152 |
| Number of Pages | 31 |
| PDF File Link: | 2017_NZERA_Christchurch_191.pdf [pdf 371 KB] |