| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2018] NZERA Christchurch 28 |
| Hearing date | 20-Feb-18 |
| Determination date | 27 February 2018 |
| Member | David Appleton |
| Representation | L Nicol (in person) ; V Lund (in person) |
| Location | Christchurch |
| Parties | Nicol v Lund and Anor |
| Other Parties | In The Pink Ltd |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondents actions – PENALTY – Applicant sought penalty for respondent’s failure to provide an Employment Agreement (“EA”) |
| Abstract | AUTHORITY FOUND – PRACTICE AND PROCEDURE: Payslips referred to ‘In The Pink Ltd’. Financial statements also show that ‘In The Pink Ltd’ solely operates the shop. Applicant employed by ‘In the Pink Ltd’. UNJUSTIFIED DISADVANTAGE: Respondent declining applicant’s leave request was not an unjustifiable action. A fair and reasonable employer could have declined leave in the circumstances. Applicant was disadvantaged by respondent withholding applicant’s final pay and holiday pay. REMEDIES: 50 per cent contributory conduct. $3,500 compensation appropriate. PENALTY: Clear breach of s63A(2) of the Employment Relations Act by respondent’s failure to provide applicant with EA. Failing was not intentional or deliberate. Respondent had prepared a draft EA and applicant only gave the company one week’s notice instead of four weeks. Financial situation of the company warranted reduction of penalty. $2,000 penalty appropriate. |
| Result | Application partially granted ; Compensation for humiliation etc ($3,500) ; Penalty ($1,000) (Payable to Crown) ($1,000)(Payable to applicant) ; Costs in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s6 ; ERA s63A ; ERA s63A(2) ; ERA s65 ; ERA s65(2)(a)(iv) ; ERA s67C ; ERA s103 ; ERA s103A ; ERA s124 ; ERA s135 ; ERA s136 ; Holidays Act 2003 s18 |
| Cases Cited | Borsboom v Preet PVT Ltd [2016] NZEmpC 143; Cox v Campbells Carrying Company 2014 Ltd [2016] NZERA Auckland 391 ; Tan v Yang [2014] NZEmpC 65 ; Vince Roberts Electrical Ltd v Carroll [2015] NZEmpC 112 |
| Number of Pages | 18 |
| PDF File Link: | 2018_NZERA_Christchurch_28.pdf [pdf 212 KB] |