| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 461/05 |
| Hearing date | 16 Sep 2005 |
| Determination date | 01 December 2005 |
| Member | J Scott |
| Representation | T Waikato ; M Beech, K Ashby-Koppens |
| Location | Auckland |
| Parties | Peary v ME & SE Jones Transport Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Triangular employment relationship - Respondent was small business and carried freight for only client (M") - Applicant threatened M he would make complaint to Police Commercial Vehicles Investigation Unit - Also left M's depot without priority freight - Because of these incidents, M told respondent it would contract with someone else if applicant remained on particular run - Respondent had no option but to remove applicant from particular run - However obliged to consider if it had other work for applicant - Applicant reluctantly agreed to day run with small reduction in remuneration - If he did not agree then he affirmed new arrangements by commencing and continuing work on terms offered - Respondent believed applicant intended to resign in near future but when he did not respondent informed applicant his remuneration would be reduced further - Applicant's lawyer informed respondent this unacceptable - Applicant resigned after two weeks - Applicant agreed to be reassigned to day run and to reduction in pay - No unjustified disadvantage - However second reduction was substantial unilateral change to contract - Unjustified constructive dismissal - Appropriate course would have been to formally consult with applicant and, if applicant still declined to accept only position available at rate offered, respondent could have justifiably terminated employment because applicant redundant - Remedies - Lost remuneration limited because after applicant declined only work available a genuine situation of redundancy existed - Contributory conduct - Removal from run and consequent loss of remuneration essentially of applicant's own making - ARREARS OF HOLIDAY PAY - Arrears of $46 owing - PENALTY - Claim for penalty for failure to provide written employment agreement not within 12 month limitation period - Authority also declined to award penalty for failure to keep wage and time record as "scant" records did exist and applicant was owed minimal arrears - Driver" |
| Result | Application granted ; Reimbursement of lost wages ($456) ; Compensation for humiliation ($3,000 reduced to $1,500) ; Arrears of holiday pay ($46) ; Costs reserved |
| Statutes | ERA s4;ERA s4(1)(a);ERA s63A;ERA s64;ERA s124;ERA s130;ERA s130(1);ERA s134(5) |
| Cases Cited | Andersen v Eastern Institute of Technology unreported, Shaw J, 5 July 2001, WC 23/01;Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963;Crawford v Airport Shuttles Ltd unreported, D Asher, 15 July 2003, WA 100/03;G & H Trade Training Ltd v Crewther [2002] 1 ERNZ 513;Energy Enterprises Ltd t/a Coastline 93.4 FM v Newland [1997] ERNZ 162;NZ Amalgamated Engineering etc IUOW v Ritchies Transport Holdings Ltd [1991] 2 ERNZ 267;Ward v Spotless Services (NZ) Ltd unreported P Stapp, 6 August 2003, CA 87/03;Wellington Clerical Workers' IUOW v Barraud & Abraham Ltd [1970] 70 BA 347;Wellington etc Clerical Workers IUOW v Greenwich [1983] ACJ 965;Western Excavating (ECC) Ltd v Sharp [1978] 1 All ER 713 |
| Number of Pages | 9 |
| PDF File Link: | aa 461_05.pdf [pdf 52 KB] |