| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 143/07 |
| Hearing date | 30 Aug 2007 |
| Determination date | 26 November 2007 |
| Member | H Doyle |
| Representation | P Wetherall ; G Commandeur |
| Location | Hokitika |
| Parties | Thomson v New Zealand Ruby Rock Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Whether employee or independent contractor - Overwhelming evidence applicant employee - Applicant unwittingly involved in conflict between director and his wife, respondent’s other shareholder - Told to stop wife working in shop but felt uncomfortable as considered her his boss - Created stress between applicant and director - Applicant dismissed on notice - Differing reasons given for dismissal - Resulted in altercation between parties - Summarily dismissed during notice period - Respondent advanced several reasons for dismissal: redundancy, poor performance, misconduct relating to altercation and alleged refusal to co-operate when told hours would change - Respondent hired another employee and store remained open - No genuine redundancy - Process unfair and not undertaken in good faith - Fair and reasonable employer would not have expected employee to deal with situation involving wife without assistance - No proper process in relation to performance concerns and did not justify dismissal - Altercation main reason for dismissal during notice period - Other reason for dismissal was failure to co-operate with changed hours but this did not justify dismissal - Cooling off period required - Both dismissals unjustified - Remedies - Applicant’s role in altercation contributed to summary dismissal - Contributory conduct 10 percent - Arrears of wages and holiday pay due and owing - Interest eight percent - COUNTERCLAIM - Respondent’s claim for damages for losses resulting from need for director to return to New Zealand to deal with situation and impact on sales dismissed - Manager |
| Result | Application granted ; Reimbursement of lost wages ($6,679.40 reduced to $6,011.46) ; Compensation for humiliation etc ($7,000 reduced to $6,300) ; Arrears of wages ($555.24) ; Arrears of holiday pay (Quantum to be determined) ; Interest (8%) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s103A;ERA Second Schedule cl11;Holidays Act 2003 s24;Holidays Act 2003 s25 |
| Number of Pages | 13 |
| PDF File Link: | ca 143_07.pdf [pdf 48 KB] |