| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 65/06 |
| Hearing date | 15 Feb 2006 |
| Determination date | 10 May 2006 |
| Member | J Crichton |
| Representation | P Butler ; J Shingleton |
| Location | Christchurch |
| Parties | Dakers v Perry |
| Summary | PRACTICE AND PROCEDURE - Admissibility of letter respondent wrote to Mediation Service which contained reasons for dismissal - Respondent alleged letter attracted privilege which attached to documents written in contemplation of mediation and ought not be disclosed in investigation meeting - However respondent had provided copy of letter to applicant and any privilege which might have attached must have been waived by respondent's subsequent use of document for entirely separate purpose - Letter could not be seen as written in contemplation of mediation because letter itself made it clear that respondent refused to attend mediation - PARENTAL LEAVE - Identity of employer - Respondent was dentist practising with other dentists - Alleged applicant employed by group of dentists - Dentists' Deed of Association allowed for employment by group or by individual dentists - Evidence equivocal but Authority inclined to view that applicant employed by respondent - In any event doctrine of undisclosed principal applied - Applicant on maternity leave - Telephone conversations between parties led applicant to believe she had been dismissed - Whether or not respondent used words dismissal" or "fired", only proper conclusion applicant could have reached was that her employment had ended - Respondent alleged s51 Parental Leave and Employment Protection Act 1987 ("PLEPA") applied because nature of position applicant occupied prior to going on parental leave was significantly different from any position which she might be offered with respondent after end of her parental leave - Relied on contention that because applicant was employed for 40 hours a week when parental leave started, that was only position that she could legally aspire to at end of parental leave - Respondent's assistant now worked less hours per week because respondent had reduced his hours of work - Applicant's evidence was that in period immediately prior to parental leave her hours had started to reduce - Because of her baby she sought a part-time position which, on respondent's evidence, was kind of position respondent had to offer - Employee undertaking applicant's position understood she was relieving it temporarily until applicant returned - Vacant position to which applicant could have been appointed to - Position substantially similar even though hours had reduced - Every prospect that applicant could have been appointed to position if had been any consultation - No consultation - Respondent breached obligations under PLEPA - Remedies awarded under PLEPA" |
| Result | Application granted ; Reimbursement of lost wages ($9,162.17)(5 months) ; Compensation for humiliation etc ($12,500) ; Costs reserved |
| Statutes | ERA s103(1)(a);ERA s103(1)(b);Parental Leave and Employment Protection Act 1987 s41;Parental Leave and Employment Protection Act 1987 s51;Parental Leave and Employment Protection Act 1987 s56(1)(b);Parental Leave and Employment Protection Act 1987 s56(1)(c);Parental Leave and Employment Protection Act 1987 s65(b) |
| Cases Cited | Lewis v Greene [2004] 2 ERNZ 55 |
| Number of Pages | 10 |
| PDF File Link: | ca 65_06.pdf [pdf 61 KB] |