| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 132/06 |
| Hearing date | 5 Oct 2006 |
| Determination date | 09 October 2006 |
| Member | G J Wood |
| Representation | G Irwin ; no appearance |
| Location | Wellington |
| Parties | Harvey v Smith and Anor t/a D M Transport |
| Other Parties | Nola |
| Summary | UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Constructive dismissal – No appearance by respondent - Service on any particular member of partnership sufficient to constitute service on all partners - At beginning of employment some difficulties in arranging method of pay and later over taxation – Applicant concerned paying far more tax than usual and took it up with respondent – Dispute went on for several weeks without resolution – Respondent accused applicant of breaching employment agreement’s confidentiality provisions by raising concerns directly with IRD – Applicant told he would be given alternative driving run and would no longer be given weekend work – Authority accepted changes made to punish applicant – Applicant concerned about changes as knew nothing about new run and would lose money without weekend work – Applicant believed unfairly punished and resigned – Agreed to work out one month notice period – Respondent made deduction from final pay for time applicant away giving evidence in High Court on another matter – Authority accepted respondent previously agreed to pay applicant for this time – Applicant greatly distressed by dismissal – Matters made worse by insulting text messages sent by respondent – Constructive dismissal – Workers entitled to take up issues concerning them, particularly over appropriate level of take home pay – Instead of assisting process, respondent punished applicant – Clear breach of duty of sufficient seriousness to make it reasonably foreseeable that applicant would resign – Remedies - Disadvantage inextricably linked with unjustified dismissal and global award appropriate – Compensation would have been extended beyond three months had employment been for much longer duration than three months and had he not been working significantly reduced hours at new employment – Applicant did not receive weekend work for last three weeks of employment – Entitled to claim that loss – ARREARS OF WAGES AND HOLIDAY PAY - No holiday pay paid – Applicant entitled to week’s pay deducted because of High Court attendance and holiday pay - COSTS - Two hour investigation meeting - Applicant sought costs of $4,000 plus expenses - Appropriate to award $1,500 plus disbursements as claimed - Also entitled to interest on all amounts owing of 6 percent - Length of service three months - Driver |
| Result | Application granted ; Reimbursement of lost wages ($6,342.05)(Three months plus lost weekends) ; Compensation for humiliation etc ($8,000) ; Arrears of wages ($560) ; Arrears of holiday pay ($336.80) ; Costs in favour of applicant ($1,500) ; Disbursements ($223) ; Interest (6%) |
| Statutes | ERA s181 |
| Cases Cited | Auckland Provincial District Local Authorities Officers’ IUOW v Auckland Electric Power Board [1994] 2 NZLR 415 ; [1994] 1 ERNZ 168 (CA) |
| Number of Pages | 6 |
| PDF File Link: | wa 132_06.pdf [pdf 27 KB] |