| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 62/06 |
| Hearing date | 23 Feb 2006 |
| Determination date | 06 March 2006 |
| Member | J Scott |
| Representation | S Bush ; R Greer |
| Location | Auckland |
| Parties | Tuhega v PR Security Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Whether dismissed or casual employee not offered further work - No written agreement - No discussion or agreement on terms of employment - Contract formed as applicant performed work when requested and was paid for it - Agreement stating applicant was casual employee signed only on behalf of respondent and presented after employment had ended did not show what was agreed between the parties - Respondent gave contradictory evidence that it rarely engaged casuals and its own documentation described applicant as permanent part-timer - Applicant was permanent part-time employee - Respondent had not ceased to offer work but explicitly dismissed applicant - Respondent attempted to rely on provision in application form that provided for three month trial during which employee could be dismissed without notice if standards not met - Alleged three complaints received about applicant not wearing uniform and having his son on the job - Erroneous view that less stringent obligations of fairness applied during trial periods - No inquiry into complaints meant respondent could not honestly hold a genuine belief there had been misconduct justifying dismissal - Allegations not put to applicant so no opportunity to seek representation or explain - Dismissal inconsistent with natural justice - On its own, not wearing uniform not grounds for dismissal - Having son on the job possibly more serious but required investigation - Unjustified dismissal - Remedies - Contributory conduct - Unanswered issues arising from lack of inquiry meant unable to determine if applicant contributed to dismissal - ARREARS OF HOLIDAY PAY - Entitled to holiday pay accrued during employment - PENALTY - No penalty for failure to provide written employment agreement as respondent recognised obligation and had taken steps to comply - Length of service three weeks - Security guard |
| Result | Application granted ; Reimbursement of lost wages ($3,193 gross)(13 weeks) ; Compensation for humiliation etc ($5,000) ; Arrears of holiday pay ($43.14) ; Costs reserved |
| Statutes | ERA s64;ERA s67;ERA s124;Employment Relations Amendment Act (No 2) 2004 s28 |
| Cases Cited | W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448 ; [2001] 3 NZLR 29;Airline Stewards and Hostesses of New Zealand IUOW v Air New Zealand Ltd [1990] 3 NZILR 584 |
| Number of Pages | 6 |
| PDF File Link: | aa 62_06.pdf [pdf 34 KB] |