| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 22/08 |
| Hearing date | 15 Jan 2008 |
| Determination date | 24 January 2008 |
| Member | D King |
| Representation | S Mitchell ; J Hardaker |
| Location | Auckland |
| Parties | Mikara and Ors v Crusader Meats New Zealand Ltd |
| Other Parties | Mikara, Tutaki |
| Summary | UNJUSTIFED DISMISSAL – Applicants took other employment during period of lockout – Lockout lifted early – Respondent gave applicants opportunity to continue employment if returned on specified date – Applicant claimed requirement to return on specified date unreasonable as had to give few days notice to alternative employer – Respondent claimed actions constituted resignation, or alternatively termination when failed to attend work following lifting of lockout – Discontinuance of employment contemplated a limited cessation of employment and not an actual dismissal – While obligation suspended S96(i) and (ii) Employment Relations Act 2000 (ERA") provided clear intention that legislation did not contemplate termination of employment during lockout – Wage/work bargain fundamental part of employment relationship discontinued during lockout – No obligation on employer to provide work or pay employee, concomitantly, employee under no obligation to work or expect to receive wages – Nothing in ERA or employment agreement prevented locked out employee taking alternative employment – Alternative employment did not interfere with obligations to respondent – Taking alternative employment during lockout not repudiation of existing agreement or resignation – Employment agreement provided employees absent from work for three consecutive working days and without contact deemed to have terminated employment – Applicants told respondent would return to work – Parties made express provision for abandonment – Failure to return to work considered pursuant to provision – Clear to respondent applicants intended to perform obligations under contract – Appropriate inquiries not made about intention to return to work and reasons for not being able to return when requested – Dismissals unjustified – Reinstatement ordered – Applicant’s failure to return on specified date contributed to situation that gave rise to personal grievance – Contributory conduct 25 percent - Meat workers" |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages (Quantum to be determined between parties) ; Compensation for humiliation etc ($3000 reduced to $2250) |
| Main Category | Personal Grievance |
| Statutes | ERA s82(1)(a)(ii);ERA s96(i);ERA s96(ii);ERA s97;Contractual Remedies Act 1995 s5;Contractual Remedies Act 1995 s6;Contractual Remedies Act 1995 s10 |
| Cases Cited | David v Ports of Auckland Limited [1991] 3 ERNZ 475;Ford v Hutt Valley Health Corporation Ltd [1994] 1 ERNZ 563;Whaanga v City Line (New Zealand) Limited [2001] ERNZ 222;Witehira v Presbyterian Support Services (Northern) [1994] 1 ERNZ 578 |
| Number of Pages | 10 |
| PDF File Link: | aa 22_08.pdf [pdf 35 KB] |