| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 202/01 |
| Determination date | 29 November 2001 |
| Member | Y S Oldfield |
| Representation | C Fletcher ; O Dunning |
| Location | Auckland |
| Parties | Johnson v Spencer t/a Caffe Rossini |
| Other Parties | Spencer |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Absent due to illness - Attempted to contact applicant during sick leave - Refused attempt to return to work - Required certification of fitness to return to work - Informed that applicant would be contacted for further discussion - Attempted to return to work again after no contact made - Suspected applicant not ill - Dismissed for loss of trust and confidence - Asked to leave premises immediately after heated discussion - Reasons for loss of trust and confidence given after dismissal - Alleged breakdown in relationship after failed to pool tips and removed cups from premises without permission - Suspected of taking compact disks and cash - Illness not justifiable reason for dismissal - No obligation to certify fitness to return to work - Reasons for dismissal not raised with applicant prior to dismissal - Could not be taken into account in decision to dismiss - Dismissal substantively unjustified and procedurally unfair - Contributory conduct - Unclear evidence of contribution to dismissal - Inappropriate to reduce remedies - ARREARS OF WAGES - Acknowledged that wages outstanding - Quantum owed disputed - Employment agreement not in writing - Wages received 'in the hand' - Alleged agreement for flat wage rate despite fluctuating hours - No wage and time records kept - Tax paid on 'under the table' payments - Balance of wages due and owing - COSTS - Contribution of $10,000 sought to total costs of $14,690 - One day investigation meeting - Unclear how large counsel costs reached - Nothing exceptional to warrant greater than ordinary award - Maitre d' |
| Result | Application granted ; Reimbursement of lost wages ($1,789)(13 weeks) ; Compensation for humiliation etc ($3,000) ; Arrears of wages ($611.98) ; Costs in favour of applicant ($1,500) |
| Number of Pages | 7 |
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