| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 59/08 |
| Hearing date | 8 Feb 2008 |
| Determination date | 22 February 2008 |
| Member | R Arthur |
| Representation | G Finnigan ; no appearance |
| Location | Auckland |
| Parties | Macdonald v Gifkins t/a Grey Lynn Veterinary Clinic and Anor |
| Other Parties | Grey Lynn Veterinary Clinic Ltd |
| Summary | PRACTICE AND PROCEDURE – Identity of employer - First respondent sole director of second respondent – Second respondent limited liability company – No appearance for respondents – In statement in reply respondents argued no employment relationship between applicant and first respondent – Authority found no mention in employment agreement (“EA”) of limited liability company – Authority accepted applicant’s evidence that no reference to company during employment – Found legal identity of second respondent never disclosed to applicant - Correct employer first respondent not second respondent – UNJUSTIFIED DISMISSAL – Applicant discussed concerns with first respondent – That evening, applicant sent first respondent text message saying was not up to work next day – Next morning, first respondent called applicant to ask if coming to work – After brief discussion, first respondent said “we have hit a wall then … we need to part ways” – Applicant emailed first respondent to ask if was dismissed – When received no reply, applicant went to work – First respondent had changed locks – Applicant informed first respondent that taking legal advice – Third party (“L”) called applicant claiming told to settle matters on behalf of first respondent – Applicant made appointment to collect personal property from first respondent’s premises – L cancelled appointment – Applicant contacted police to arrange collection of property – Applicant served with trespass notice – Authority found employment terminated when applicant arrived at workplace to find locks changed without notice – Found also more likely than not that words of first respondent about parting ways constituted words of dismissal – Found taken together actions clearly intended to send applicant away and amounted to dismissal – Found first respondent failed to meet obligations to address applicant’s concerns in manner consistent with good faith obligations – Found instead responded in unfair and unreasonable manner by dismissing applicant – Dismissal unjustified – REMEDIES – Applicant on sickness benefit – Applicant had not pursued some employment options due to personal or moral views about workplaces – One month’s “time out” in Australia not included in lost wages – Wage and time records not provided – Authority relied on applicant’s assessment of average wages – Sixteen weeks lost wages appropriate – Earnings from applicant’s part time temporary employment to be deducted from lost wages award – Authority found applicant humiliated when locked out in front of client and as peers in small industry believed dismissed for misconduct – Found compounded by first respondent’s petty behaviour in failing to return applicant’s personal property and instigating trespass order – Authority found applicant suffered medical problems connected to circumstances of dismissal – Compensation award appropriate – Applicant sought return of personal property – Authority found inconsistent with mutual obligation of trust, confidence and fair dealing to refuse to make reasonable arrangements to return property – Found if return not arranged within two weeks of determination, compensation award to be increased by $2,000, as compensation for loss of benefit – Authority found respondent promised applicant benefit of attendance at overseas conference as personal development – Authority found loss of opportunity of attend constituted loss of benefit - Authority awarded sum to mark loss – No contributory conduct – ARREARS OF HOLIDAY PAY – As respondent provided no wage and leave records, Authority relied on applicant’s evidence to assess holiday pay – Authority found holiday pay owing – PENALTY – Authority found remedies awarded satisfactorily dealt with issues of personal property and holiday pay – Authority found first respondent showed no good reason for failure to provide records – Penalty payable to Crown appropriate - Veterinary nurse |
| Result | Application granted (dismissal) ; Reimbursement of lost wages (16 weeks)($10,640) ; Compensation for humiliation etc ($8,000) ; Arrears of holiday pay ($3,137) ; Loss of chance ($1,000)(personal development conference) ; Orders made (return of personal property)(failing return, $2,000 to be added to compensation) ; Penalty ($500)(Payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s123(1)(b);ERA s123(c)(ii);ERA s128;ERA s130;ERA s130(2);ERA Schedule 2 cl12 |
| Cases Cited | Cuttance v Perkins [1994] 2 ERNZ 321 |
| Number of Pages | 14 |
| PDF File Link: | aa 59_08.pdf [pdf 44 KB] |