| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 51/07 |
| Hearing date | 7 Mar 2007 |
| Determination date | 10 May 2007 |
| Member | J Crichton |
| Representation | M Thomas ; R Brazil |
| Location | Invercargill |
| Parties | Miller v Nicholas Garden Group Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Applicant responded to advertisement seeking full time and casual employees - Application for permanent position unsuccessful - Several months later respondent contacted applicant to ask if still interested in working for it - Offered and accepted job - Claimed not told position casual - Worked variable hours according to monthly roster, averaging 42.5 hours per week - Roster later changed and applicant to work only 4-6 days per month - Respondent told him work seasonal and change happened every year - Applicant later told employment terminated as business quiet, and all causal employees hours reduced - Individual employment agreement (IEA") contained job description stating position casual and subject to seasonal variation - Contention applicant knew or ought to have known casual employee because of IEA or nature of industry failed - Applicant had not seen job description before Authority proceedings - Had not worked at respondent during off season and had no extrinsic history to rely upon in relation to industry custom and practice - Clear intimation applicant appointed to permanent position - Applicant's employment permanent part-time with no fixed hours - Termination not consistent with IEA notice requirements- Dismissal unjustified - Remedies - Negative consequences of dismissal exacerbated by intemperate and truculent language of respondent in responding to applicant's attempts to address wrong - Entitled to lost wages for entire period out of work, but calculation not straight forward - Applicant submitted entitled to average wages earned during employment - Respondent argued lost wages should be abated to take account of reality hours would have been reduced during off season - Applicant also sought lost wages for period of reduced hours before dismissal - No evidence employment relationship during that period had soured and reasonable for respondent to maintain applicant provided with whatever hours available - Lost wages awarded on basis of four months of off-season hours, and three summer months" |
| Result | Application granted ; Reimbursement of lost wages ($8,308.75)(8 months) ; Compensation for humiliation ($8,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Number of Pages | 10 |
| PDF File Link: | ca 51_07.pdf [pdf 36 KB] |