| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 110/05 |
| Hearing date | 23 Jun 2005 |
| Determination date | 08 July 2005 |
| Member | D Asher |
| Representation | D Abraham ; A McLeod |
| Location | Napier |
| Parties | Philipsen v Monteith t/a The Central Cafe, Lyndon Road East, Hastings |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant's pay cut - Applicant understood if he did not agree to wage decrease his employment would be terminated - Difficult but not unreasonable situation - Justifiable proposition put to applicant by respondent and applicant's agreement to pay cut freely given - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Respondent invited applicant for chat after work - Told he was dismissed - Reasons given were that it was unethical for applicant (as former owner of cafe) to work in cafe, and that respondent could not afford him - Predetermination - No procedural fairness - Respondent could not rely on any claim of ethics to justify dismissal - Performance issues respondent raised at investigation meeting were never raised with applicant - Unjustified dismissal - Remedies - Compensation for humiliation took into account effect on applicant of respondent's gratuitous and offensive telephone call after learning of personal grievance - Applicant took break following dismissal before commencing car importing partnership that had yet to make money - No attempt to mitigate losses - Not entitled to reimbursement of lost wages - PENALTY - Applicant sought penalty for failure to produce wage and time records - Respondent instructed accountant to forward records to applicant - Penalty not called for - COSTS - Costs reserved but Authority anticipated that applicant's approximate costs claim of $3,000 would be reasonable contribution - Chef |
| Result | Application granted (unjustified dismissal) ; Application dismissed (unjustified disadvantage and penalty) ; Compensation for humiliation etc ($10,000) |
| Statutes | ERA s159 |
| Cases Cited | Auckland City Council v Hennessey [1982] ACJ 699 ; (1982) ERNZ Sel Cas 4 |
| Number of Pages | 7 |
| PDF File Link: | wa 110_05.pdf [pdf 30 KB] |