| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 158/07 |
| Hearing date | 27 Feb 2007 |
| Determination date | 24 May 2007 |
| Member | K Raureti |
| Representation | R Mark ; M Sanderson (in person) |
| Location | Auckland |
| Parties | Callen v Marie Sanderson t/a Marie's Early Childhood Learning Centre |
| Summary | UNJUSTIFIED DISMISSAL - Misconduct - Identity of employer - Applicant employed by company, not director personally - Director remiss in not correctly stating identity of employer in employment agreement, but no evidence applicant misled or deceived - Not just and equitable for director to be personally liable - Applicant being trained in total operation of business because planned to take up position as licensee - At end of first week's employment, decided to resign - Spoke with other staff about decision and handed in written resignations from all staff along with her own - Dispute arose over amount of administrative work applicant to do during notice period - Applicant insisted on keeping administrative hours despite respondents attempts to remove those duties from her - Respondent denied dismissing applicant after heated exchange, instead claimed suspended her to conduct investigation into several allegations - At disciplinary meeting, applicant presented prepared statement and sought more information about some allegations - Respondent did not accept applicant's explanations or requests for more information - Summarily dismissed applicant - No full and fair investigation - Dismissal unjustified - Remedies - Respondent's request applicant spend more time teaching than learning administrative tasks reasonable given resignation and terms of employment agreement - Applicant deliberately defied director's authority - Contributory conduct 20 percent - ARREARS OF WAGES - Applicant claimed paid at wrong salary rate - Higher rate specifically negotiated for extra responsibilities associated with licensee responsibilities had yet to take up - Applicant paid at correct rate - Entitled to be paid in full for days respondent sent her away as part of disciplinary process, but not for other absences - PRACTICE AND PROCEDURE - Counterclaim - Respondent sought large sum as damages - Claim not particularised and lacked sufficient detail to enable thorough investigation - Separate investigation set down but respondent sought adjournment - Counterclaim adjourned sine die - Team leader |
| Result | Application granted ; Reimbursement of lost wages (Two weeks reduced by 20%) ; Compensation for humiliation etc ($1,000 reduced to $800) ; Arrears of wages (Quantum to be determined) ; Counterclaim adjourned sine die ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Companies Act 1993 s25(1);Companies Act 1993 s25(2);ERA s103A |
| Cases Cited | Air New Zealand v Hudson [2006] 1 ERNZ 415;NZ (with exception) Food Processing etc IUOW v Unilever NZ Ltd [1990] 1 NZILR 35 |
| Number of Pages | 8 |
| PDF File Link: | aa 158_07.pdf [pdf 56 KB] |