| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 353 |
| Hearing date | 26 Oct 2017 - 1 Nov 2017 (2 days) |
| Determination date | 13 November 2017 |
| Member | J Trotman |
| Representation | F McMillan, H Struckman ; L H Yang |
| Location | Auckland |
| Parties | Zhou v Axis International Trading Company Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unjustifiably dismissed by respondent – Applicant claimed unjustifiably disadvantaged by respondent’s refusal to refund premium and allegations applicant over-claimed amounts from ACC – PENALTY – Applicant sought penalty for respondent’s unlawful receipt of a premium – Acupuncturist |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant unjustifiably disadvantaged by respondent’s refusal to immediately repay premium. Applicant not unjustifiably disadvantaged by respondent contacting ACC about overcharging. Applicant’s resignation not reasonably foreseeable. No constructive dismissal. REMEDIES: No compensation payable.;PENALTY: Respondent received payment as consideration for applicant’s employment. Breach not deliberate or calculated. Payment not used by respondent and returned promptly on becoming aware illegal. $7,000 penalty appropriate. |
| Result | Applications granted (unjustified disadvantage)(penalty) ; Penalty ($7,000)(payable to Crown) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 ; ERA s174E ; Wage Protection Act 1983 s12A(1) ; Wage Protection Act 1983 s13 |
| Cases Cited | Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA);Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union Of Workers (Inc) [1994] 2 NZLR 415 (CA);Borsboom v Preet PVT Ltd [2016] NZEmpC 143;Business Distributions Ltd v Patel [2001] ERNZ 124 (CA);Cook Islands Shipping Co Ltd v Colson Builders Ltd [1975] 1 NZLR 422 (SC);Labour Inspector of the Ministry of Business Innovation and Employment v Tech 5 Recruitment Ltd [2016] NZEmpC 167;Xtreme Dinning Ltd v Dewar [2016] NZEmpC 136 |
| Number of Pages | 22 |
| PDF File Link: | 2017_NZERA_Auckland_353.pdf [pdf 301 KB] |