| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 247/07 |
| Hearing date | 4 Apr 2007 - 9 May 2007 (3 days) |
| Determination date | 14 August 2007 |
| Member | D King |
| Representation | B Kang ; K Beck |
| Location | Auckland |
| Parties | Park v K & C Howick Ltd t/a Howick Kim's Club & Anor |
| Other Parties | Save Max Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy - Proceedings complicated by applicant’s large investment or loan to first respondent – Matter outside Authority’s jurisdiction but coloured employment relationship - Identity of employer – Part of first respondent sold to second respondent and director agreed to second staff to second respondent – Applicant remained employee of first respondent but should have been informed of sale and consulted about “secondment” – Directors suggested applicant look for new employment but would continue to pay PAYE to help him meet residency requirements - No instruction not to come to work – Duties removed from applicant and pay stopped – Applicant alleged after unsuccessful mediation approached by “gangsters” who demanded problems be resolved without recourse to Courts – Authority accepted he felt intimidated but no evidence they were in fact gangsters, or hired by director to intimidate applicant – Applicant later dismissed when position disestablished – Clear much of work related to applicant’s role ceased to exist well before notification of possible redundancy – Failure to notify and discuss situation breached good faith, as did failure to discuss “secondment” – Later attempts at consultation a sham - Dismissal unjustified – UNJUSTIFIED DISADVANTAGE – Reason for failure to pay wages never made clear – Difficult to escape conclusion failure related to poor relationship between parties – Applicant unjustifiably disadvantaged – Failure by respondent to appropriately deal with situation that arose in workplace also constituted disadvantage - Remedies – No lost wages as work disappeared – Global award of compensation – Contributory conduct 25 percent - ARREARS OF WAGES AND HOLIDAY PAY – Arrears of holiday pay due and owing – Respondent deducted amounts equal to applicant’s PAYE from loan repayments – Deductions not agreed but as matter unrelated to employment Authority could not order reimbursement - PRACTICE AND PROCEDURE - First respondent placed in liquidation after investigation meeting – Registrar of Companies accepted applicant’s objection to removal of company from Register on basis it was party to legal proceedings - Marketing Manager |
| Result | Application granted ; Compensation for humiliation etc ($4,000 reduced to $3,000) ; Arrears of holiday pay ($2,726.73) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Companies Act 1993 s248;Companies Act 1993 s321(1)(b);ERA s4(4);ERA s122 |
| Cases Cited | Pacific Holding Ltd v Hudson NZ Ltd & Ors unreported, Faire J, HC Auckland, CIV 2005-404-531 |
| Number of Pages | 14 |
| PDF File Link: | aa 247_07.pdf [pdf 48 KB] |