| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 311/04 |
| Hearing date | 11 Aug 2004 |
| Determination date | 24 September 2004 |
| Member | V Campbell |
| Representation | C Patterson ; D Rush |
| Location | Auckland |
| Parties | Da Cruz v Rush Security Ltd and Ors |
| Other Parties | Rush, Rush |
| Summary | UNJUSTIFIED DISMISSAL - Applicant on Canadian working holiday permit - Conditions that could not work for same employer for more than three months and must not undertake permanent employment unless granted ordinary work permit - Applicant told respondent of first condition only - Discussion about respondent assisting with change to permit - Offered permanent job - Completed one day's work - Respondent unhappy with applicant's behaviour allegedly asking for increase in salary, car and mobile phone - Applicant dismissed - Alleged dismissal justified since applicant not entitled to permanent employment under permit - Alleged if had not withdrawn offer would have breached s39 Immigration Act 1937 - Employment agreement set out disciplinary procedures - Complete lack of process - Grounds for dismissal unrelated to conditions attached to working holiday permit - Unjustified dismissal - Respondent wrote to Immigration service identifying applicant and lodged formal compliant, following that up with letter to Minister - ARREARS OF WAGES AND HOLIDAY PAY - One days wages and holiday pay due and owing - PENALTY - Not persuaded any breaches warranting imposition of penalty on first respondent - Penalty against second respondent for instigating first respondent to breach employment agreement by withholding payment of wages and holiday pay not appropriate as second respondent took early steps to effect payment of outstanding amounts - COUNTERCLAIM - Not satisfied claim for damages made out - Unable to identify breaches of employment agreement such as to warrant penalty - No jurisdiction to order written apology |
| Result | Application granted ; Arrears of wages ($153.43) ; Arrears of holiday pay ($9.21) ; Reimbursement of lost wages ($2,307.69)(3 months) ; Compensation for humiliation etc ($3,500) ; Costs reserved |
| Statutes | ERA s64;ERA s64(2);ERA s124;ERA s134(2);Immigration Act 1937 s39;Wages Protection Act |
| Cases Cited | Airline Stewards and Hostesses of NZ IUOW v Air NZ Ltd [1990] 3 NZILR 584 ; [1990] 3 NZLR 549;Magnum Corporation Ltd v Jenkins [1994] 2 ERNZ 443;Peterson v Board of Trustees of Buller High School unreported, Goddard CJ, 6 March 2002, CC 7/02;W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448 ; [2001] 3 NZLR 29 |
| Number of Pages | 10 |
| PDF File Link: | aa 311_04.pdf [pdf 50 KB] |