| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 116/06 |
| Hearing date | 6 Jul 2006 |
| Determination date | 29 August 2006 |
| Member | D Asher |
| Representation | J Greally ; M Chiu |
| Location | Wellington |
| Parties | Pritchard v Zeng |
| Summary | PRACTICE AND PROCEDURE - Identity of employer – Whether employed by company or respondent personally – Company never identified itself as employer and applicant properly and lawfully regarded respondent as employer - UNJUSTIFIED DISMISSAL – Applicant alleged one week into job he was told he owed $7.50 due to till discrepancies and he would be fired if it happened again – Also alleged given no break during shifts – Applicant took movies home in accordance with staff rules – Without consultation respondent required staff to sign changed rules and authorise deductions for till discrepancies – Applicant told not signing would result in dismissal – Applicant signed but later attempted to withdraw consent – Applicant dismissed - Respondent did not attend investigation but was represented - Respondent claimed dismissal resulted from applicant taking home movies without paying, repeatedly refusing to follow instructions, closing shop when going to the toilet and bullying behaviour – No record of respondent’s concerns – These were serious matters that could fairly and reasonably be expected to be recorded – Respondent’s credibility weakened by non-compliance with provision in agreement that respondent was “committed to dealing with problems” – Revised staff rules unreasonable – Requirement to keep shop open at all times impracticable, employees allowed comfort stops – Applicant’s refusal to continue authorising deductions from wages resulted in dismissal – Initial agreement not freely given – In absence of proper process putting actual instances to applicant it was unjustified to dismiss him over refusal to agree to unilateral variation of employment agreement – Unjustified dismissal – Remedies – Applicant entitled to three weeks pay – Compensation for losses arising out of withdrawal from study declined as not accepted applicant could impose on respondent express or implied agreement that employment would result in successful completion of course – ARREARS OF WAGES AND HOLIDAY PAY – Applicant entitled to final week’s pay and holiday pay – In absence of evidence of agreement Authority did not accept claim applicant should be paid for training and overtime – COSTS - Length of investigation not specified - Appropriate contribution to applicant's costs was $2,500 - Length of service 10 weeks – Video shop assistant |
| Result | Application granted ; Reimbursement of lost wages ($900)(3 weeks) Compensation for humiliation etc ($6,000) ; Arrears of wages ($300) ; Arrears of holiday pay ($257.70) ; Costs in favour of applicant ($2,500) |
| Statutes | ERA s160(1);ERA s173;ERA s173(2A) |
| Number of Pages | 11 |
| PDF File Link: | wa 116_06.pdf [pdf 50 KB] |