| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 340/06 |
| Hearing date | 4 Sep 2006 |
| Determination date | 08 November 2006 |
| Member | R A Monaghan |
| Representation | B Leveson ; K Beck |
| Location | Auckland |
| Parties | Thanakornmanaporn v Boonyaphat Company Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Respondent recruited applicant from Thailand on fixed term agreement and retained his passport, although would temporarily return it on request - Before fixed term expired applicant informed respondent offered another job - Also requested passport - Manager did not return it as thought wanted passport so could leave immediately - Applicant had not said intended leaving early - Insufficient grounds for manager's conclusion - Both parties came to link return of passport with termination of employment - Applicant felt no choice but to leave because wanted passport - Even if passport sought to pursue employment elsewhere, did not in itself mean would leave current employment early - Applicant did not resign or voluntarily leave employment - Although respondent not seeking to dismiss, actions amounted to initiative for termination of employment - Applicant dismissed - Since based on misunderstanding, dismissal unjustified - Remedies - Lost wages limited to period of fixed term - Authority unconvinced loss mitigated and lost wages adjusted to reflect that - Minimal compensation as already unhappy at work and intended to leave soon - PENALTY - Claim for breach of obligation to provide opportunity to obtain advice when entered employment relationship raised out of time - Breach of good faith not raised expressly before investigation meeting - Not appropriate to raise it in submissions and not treated as part of employment relationship problem - Applicant sought penalty for payment in Thai baht rather than New Zealand dollars - Parties had agreed part of applicant's salary would be remitted directly to his Thai account - No breach of employment agreement in respect of payment in baht and no penalty to be imposed - However, requirement for written consent to pay wages into bank account not met - Breach did not call for penalty, but respondent to amend its employment agreements - Employment agreement silent on deductions made for accommodation, food and utilities - Penalty warranted but mitigating factors as applicant orally agreed to deductions and respondent recognised mistakes and prepared to address them - ARREARS OF WAGES - Letter from respondent to Immigration Service before applicant employed stated hourly rate for position - However, letter merely account from employer to third party, not evidence of later agreement between parties - No grounds to order repayment of deductions as subject to oral agreement - Correct accounting of PAYE between respondent and IRD - If applicant wrongly taxed matter to address with IRD - Both parties' statements of evidence filed late - Start of investigation meeting delayed so applicant and advocate could read respondent's statement - Advocate advised Authority ready to proceed and not appropriate for him to allege in submissions not given enough time to prepare - Length of service one year ten months - Chef |
| Result | Application granted (Unjustified dismissal) ; Reimbursement of lost wages ($3,115.38) ; Compensation for humiliation etc ($1,000) ; Application granted in part (Penalty) ; Penalty ($1,000)(Payable to Crown) ; Application dismissed (Arrears of wages) ; Costs reserved |
| Statutes | ERA s4A;ERA s135;Wages Protection Act 1983 |
| Number of Pages | 7 |
| PDF File Link: | aa 340_06.pdf [pdf 43 KB] |