| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 103/07 |
| Hearing date | 29 May 2007 |
| Determination date | 25 July 2007 |
| Member | G J Wood |
| Representation | R Guthrie, T Snell ; E Monteith (in person) |
| Location | Napier |
| Parties | Eagle v Monteith |
| Summary | UNJUSTIFIED DISMISSAL - Poor performance - Applicant claimed unjustifiably dismissed, paid below minimum wage, not provided with written employment agreement, and failures to comply with requests for information - Respondent claimed dismissal justified, applicant agreed to wage rate, and responded to applicant’s requests for information - Credibility finding in favour of applicant - Relationship between parties deteriorated over time - Issues raised with applicant about attire and lack of focus - Did not issue formal warnings or follow formal procedures - Applicant suffered injury at work, and was only fit for light duties on return - Incident where respondent became upset when applicant refused to carry out task due to injury - Applicant swore about respondent, which respondent either overheard or had relayed to her - Applicant issued final written warning over job performance - Applicant approached respondent when discovered being paid less than minimum wage - Respondent rejected claim applicant underpaid - Authority found it significant applicant received warning letter soon after raising pay issue - Applicant subsequently dismissed at staff meeting in front of other staff - Warnings and opportunity for improvement should have been provided - When issued with final warning respondent had already made decision to dismiss - No good cause for dismissal as applicant given no opportunity to improve and so avert dismissal - Procedure adopted by respondent unjustified - Manner of dismissal unsatisfactory - Applicant embarrassed and upset by treatment, and hurt and humiliated by process - Applicant failed to demonstrate sufficiently mitigated loss - Lost remuneration limited to four weeks - Calculation of applicant's underpayment difficult due to respondent’s failure to provide full wage and time records - Authority calculated underpayments based on applicant’s average working week - Entitled to holiday pay on total earnings - Had applicant sworn at respondent would have been grounds for reduction in remedies, however, found applicant swore about respondent and had not intended others to hear - No reduction for contributory conduct - PENALTY - Global penalty award for failure to provide written employment agreement, failure to comply with request for wage and time records, and failure to comply with request for written statement outlining reasons for dismissal - Authority awarded lower amount than could have as substantial compensation already awarded and penalty usually payable to Crown - Cafe assistant |
| Result | Application granted ; Reimbursement of lost wages ($1435) ; Holiday pay ($677.78) ; Arrears of wages ($2,007.25)(Underpayment of wages) ; Compensation for humiliation etc ($5,000) ; Penalty ($500)(Payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s121;ERA s130(2);ERA s132;Minimum Wage Act 1983 |
| Cases Cited | Trotter v Telecom Corporation of NZ Ltd [1992] 2 ERNZ 659 |
| Number of Pages | 6 |
| PDF File Link: | wa 103_07.pdf [pdf 33 KB] |