| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 101/06 |
| Hearing date | 24 Jun 2005 - 11 Nov 2005 (2 days) |
| Determination date | 03 April 2006 |
| Member | D King |
| Representation | A Gallie ; R Harrison |
| Location | Auckland |
| Parties | Schaw and Anor v Compac Sorting Equipment Ltd and Anor |
| Other Parties | Schaw, Compac Sorting Equipment Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Earlier determination found that applicant was employee not contractor - Applicant accepted offer for employment conditional on obtaining appropriate US visa - Unwise for respondent to tell US immigration authorities that applicant was an employee while asserting to applicant that he was a contractor and that he had to obtain US employee visa - Applicant employed for six months, on interim basis, pending him obtaining correct visa - Whether or not applicant agreed to time restriction on obtaining work visa, was implicit in arrangement that such visa would have to be obtained as soon as possible - No warning of dismissal - Not told that respondent considered visa requirements could not be met within specified time - People not present at meeting were involved in decision making - Unjustified dismissal - Reinstatement not possible - No reimbursement of lost wages since failure to mitigate losses - UNJUSTIFIED DISADVANTAGE - Accepted that parties had heated exchange - Suspected that applicant's memory of conversation was coloured by subsequent matters - ARREARS OF WAGES AND HOLIDAY PAY AND OTHER MONIES - Unable to make award for extra work as not evidence as to agreed rate of compensation - Might be something respondent could reconsider in interests of fairness - Annual holiday pay due and owing - Unless was dispute about whether applicant worked on statutory holidays in question, entitled to be paid for those days - No contractual basis for alleged allowances owing - Parties to discuss and attempt to agree on work related expenses - Leave to come back to Authority if could not reach agreement - Applicant not paid final salary until three months after dismissal - Entitled to seven percent interest from date of dismissal until time money was paid - Also entitled to interest on holiday pay owing - Could not make any orders for loan recompense and relocation - PENALTY - No award for breach of Holidays Act 2003 - No award for alleged breach of s4A Employment Relations Act 2000 - Length of service four months - Technical manager |
| Result | Application granted (unjustified dismissal) ; Compensation for humiliation etc ($8,000) ; Arrears of holiday pay (quantum to be determined) ; Interest 7 percent ; Orders accordingly ; Applications dismissed (Penalty and unjustified disadvantage) |
| Statutes | ERA s68N;Holidays Act 2003 |
| Number of Pages | 9 |
| PDF File Link: | aa 101_06.pdf [pdf 47 KB] |