| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 259/05 |
| Hearing date | 2 Jun 2005 |
| Determination date | 11 July 2005 |
| Member | M Urlich |
| Representation | B Spong ; G Norton |
| Location | Auckland |
| Parties | Hussein v Premier Autos Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant resigned after discussion about cell phone use at work and timing of lunch breaks - Respondent discovered applicant's employment agreement missing from office records - Subsequent meeting in which respondent refused to accept resignation and advised applicant suspended without pay pending investigation of missing agreement - Manager threatened to report missing agreement to immigration and police - Agreed applicant to return to work on next business day and bring his copy of agreement - Applicant did not return to work and notified respondent that would not do so until issues resolved - Evening visit by private investigator to applicant's home nine days later lasting four hours - Investigator satisfied applicant did not have missing document - Suspension unjustified as no consultation - Suspension not inevitable - No disadvantage in circumstances as suspension never implemented - No reasonable grounds for threats to report missing document - Threats breach of good faith but no unjustified disadvantage as meeting ended in agreement and threats not carried out - In absence of agreement for payment in lieu of notice applicant forfeited right to payment of notice period by failing to work out notice - Applicant's actions in not returning to work on date agreed ended employment relationship - Visit by private investigator occurred after termination of employment - No unjustified disadvantage - RESTRAINT OF TRADE - Applicant sought declaration that restraint of sponsorship" clause in employment agreement unconscionable and unenforceable - Clause provided $60,000 damages payable to respondent if applicant commenced employment with another employer within 36 months of employment with respondent - No reasonable basis for damages specified - Respondent agreed to sponsor applicant's immigration application as unable to recruit suitable employees in New Zealand and applicant received wages in exchange for work performed - Restraint unenforceable - PENALTY - Penalty sought for non-payment of holiday pay - Amount owing not paid until six months after employment ended - Interest paid went some way to mitigating breach - Still clear and deliberate breach of employment agreement and penalty appropriate - Vehicle stripper and fitter" |
| Result | Application dismissed (Unjustified disadvantage) ; Applications granted (Restraint and penalty) ; Orders accordingly ; Penalty ($150)(Crown) ; ($150)(Applicant) ; Costs reserved |
| Statutes | ERA s123(c)(i) |
| Cases Cited | Tawhiwhirangi v Attorney-General [1994] 1 ERNZ 459 |
| Number of Pages | 4 |
| PDF File Link: | aa 259_05.pdf [pdf 25 KB] |