| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 426/05 |
| Hearing date | 22 Mar 2005 - 27 Jun 2005 (3 days) |
| Determination date | 26 October 2005 |
| Member | A Dumbleton |
| Representation | G Finnigan ; P Wallace |
| Location | Auckland |
| Parties | Park v Brand Works Ltd and Anor |
| Other Parties | Wang |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant provided CV which represented that she had been working as personal assistant to managing director for New Zealand employer - Applicant offered position before references checked - Replied by email what a long-awaited first job and boss in NZ" (turned out to be working unpaid for husband) - Despite this raising alarm respondent did not pursue matter with applicant - Checks with referees yielded unsatisfactory responses - Alleged was offered remuneration of $30,000 per annum for 30 hour a week job - Term of employment agreement was that pay would be proportionate for 30 hours a week based on $30,000 for 40 hours a week - Claim for shortfall in pay rejected - Claim of sexual harassment dismissed - Applicant not able to perform work had represented was skilled and experienced at - Was not ordered or instructed to work longer hours, but needed extra time to keep up with requirements of job - No constructive dismissal - PENALTY - Failure to give copy of employment agreement until 1-2 weeks after commenced work - Not given time to seek advice - Agreement failed to include plain language explanation of services available for resolution of employment relationship problem - Compliance with that requirement became even more important when person being employed did not have English as first language or no experience of NZ - Failure of some significance as it caused applicant to start work with misconceptions about pay, duties and other terms on which was employed - Penalty by respondent $2,500 payable to applicant appropriate - Penalty by applicant to crown of $1,500 also appropriate for breach of employment agreement - COUNTERCLAIM - Alleged applicant caused respondent financial loss of $1,945 by misrepresenting skills and qualifications for employment and by leaving job without notice - Representation in CV was misleading, but not satisfied respondent relied on misrepresentation when employed her - Chose not to ask questions and did not terminate her employment when email contradicted experience - Did not check CV before offering employment - Respondent could be expected to bear costs of obtaining professional training assistance when discovered applicant did not have skill level as thought - Ordered to pay damages of $331 for leaving without notice" |
| Result | Penalty (by applicant)($1,500)(To crown) ; Penalty (by respondent)($2,500)(To applicant) ; Application dismissed (Constructive dismissal) ; Counterclaim partially accepted ; Damages ($331.73)(Failure to provide notice) ; Costs reserved |
| Statutes | ERA s64;ERA s64(2);ERA s65(2)(a)(vi);ERA s65(1);ERA s136 |
| Number of Pages | 8 |
| PDF File Link: | aa 426_05.pdf [pdf 50 KB] |