| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 377/06 |
| Hearing date | 14 Nov 2006 |
| Determination date | 13 December 2006 |
| Member | M Urlich |
| Representation | M McFadden ; R Renata |
| Location | Auckland |
| Parties | Samson v K & T Renata Transport Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Respondent claimed applicant dismissed because persistently failed to perform duties – Respondent proposed change from salary to hourly rate – Applicant rejected proposal and claimed meeting became hostile when raised issue of deductions from pay – Filed assault charges with police over actions of director’s father but matter not prosecuted – Director denied being hostile towards applicant and alleged he threw cell phone – Authority satisfied some form of altercation occurred – Respondent submitted not responsible for actions of director’s father as not employee – Argument did not stand as father worked part time for company and to objective observer represented respondent at meeting – For director to allow father to assault applicant amounted to serious failure by respondent to maintain obligations to provide safe workplace – Applicant's doctor placed him on stress leave – Respondent denied receiving medical certificate but Authority found applicant made reasonable efforts to send it – After representative raised personal grievance and deductions issue, applicant received dismissal letter – Reasonable for applicant to form view respondent would not abide by terms of employment agreement - Constructive dismissal – In event Authority wrong, actual dismissal unjustified as no reasonable basis for it – Remedies – Although tossing cell phone unwise, not blameworthy conduct which contributed to dismissal, reaction not proportionate – PENALTY – Applicant alleged unauthorised deductions from wages – Although agreed to deductions no evidence of written consent – Respondent failed to comply with Wages Protection Act 1983 – Penalty appropriate - ARREARS OF HOLIDAY PAY - Calculation of holiday pay referred to Labour Inspectorate – Authority had not yet received Inspector’s report – Claim stayed pending further information - Length of service seven months - Driver |
| Result | Application granted ; Reimbursement of lost wages ($3,588)(23 days) ; Compensation for humiliation etc ($4,000) ; Penalty ($200)(Payable to Crown) ; Costs reserved |
| Statutes | ERA s130;ERA s136;Wages Protection Act 1983 s5 |
| Number of Pages | 5 |
| PDF File Link: | aa 377_06.pdf [pdf 36 KB] |