| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 42/07 |
| Hearing date | 22 Nov 2006 |
| Determination date | 19 February 2007 |
| Member | V Campbell |
| Representation | M Ryan ; B Kang |
| Location | Auckland |
| Parties | Kim v Millenium Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant claimed respondent unilaterally changed his terms and conditions when told would just be baking goods on reduced hourly rate - Second employment agreement signed on those terms - First employment agreement stated applicant employed on higher salary as manager - Authority satisfied likely applicant's immigration consultant signed respondent's director's name on agreement, and used it to assist applicant in applying for work permit - First agreement never sighted or signed by respondent, and did not reflect parties actual dealings - Agreement a sham - Given finding, first agreement not unilaterally departed from - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Redundancy - Respondent sold one of its stores - Applicant notified of dismissal on bread order - Respondent had concerns about applicant's ability to bake but no warnings given - More likely than not, principal reason for redundancy director's belief applicant misrepresented his qualifications when employed - However, question of genuineness of qualifications not put to applicant for explanation - Decision profoundly unfair - Not given formal notice redundancy possible or consulted - Manner notice given and lack of consultation not fair and reasonable - Given inherent unfairness in determination and implementation of redundancy, redundancy not genuine - Dismissal unjustified - Remedies - Applicant failed to mitigate losses - However, given director took steps to have applicant's work permit revoked, lost wages to be awarded at rate in second agreement - Applicant's hours unclear - Unable to determine lost wages - Parties directed to mediation to resolve issue - Baker |
| Result | Application dismissed (Unjustified disadvantage) ; Application granted (Unjustified dismissal) ; Reimbursement of lost wages (Three months)(Quantum to be determined) ; Leave reserved for quantum of lost wages to be determined ; Compensation for humiliation etc ($3,000) ; Orders accordingly ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A |
| Cases Cited | Communication & Energy Workers Union Inc v Telecom NZ Ltd [1993] 2 ERNZ 429;Simpson Farms v Aberhart [2006] 1 ERNZ 825;Staykov v Cap Gemini Ernst & Young New Zealand Ltd unreported, Travis J, 20 April 2005, AC 18/05;Wellington International Airport Ltd v Air NZ [1993] 1 NZLR 671 (CA) |
| Number of Pages | 8 |
| PDF File Link: | aa 42_07.pdf [pdf 87 KB] |