| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 89/08 |
| Hearing date | 4 Feb 2008 |
| Determination date | 12 March 2008 |
| Member | M Urlich |
| Representation | J Cloete (in person) ; D Cowan |
| Location | Auckland |
| Parties | Cloete v Tyres Direct Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Applicant claimed unjustifiably dismissed - Respondent claimed employment terminated by operation of valid fixed term agreement (“FTA”) - Authority found fixed term clause in employment agreement met requirements of s66 Employment Relations Act 2000 - Applicant requested meeting to discuss issues with salary payments and work vehicle - At meeting applicant advised fixed term clause invoked and employment terminated immediately due to respondent’s financial situation - Applicant paid until expiry of fixed term - Authority found FTA could not end through notice at will - Authority found applicant’s employment did not end by operation of fixed term agreement as fixed term not ended - Found applicant made redundant - Authority satisfied genuine redundancy - However, respondent failed to discuss redundancy proposal with applicant and allow opportunity for comment - Applicant not treated fairly and reasonably - Dismissal unjustified - UNJUSTIFIED DISADVANTAGE - Applicant claimed incurred bank fees as result of late payment of salary on two occasions - Authority found bank records showed salary paid on specified date each month - Authority found link between bank fees and salary payment not made out - Applicant claimed suffered disadvantage when company vehicle issued with exchanged for another - Parties disputed number of times vehicle exchanges occurred - Strongest element of applicant’s claim, if could be made out, that respondent failed to discuss exchange and attempt to accommodate applicant’s concerns - However, claim not specific enough for Authority to make any findings - No unjustified disadvantage - REMEDIES - No contributory conduct - Applicant’s claim for lost wages could not succeed as received all monies owed under valid FTA - Dismissal placed financial and emotional stress on applicant and applicant’s family - $3,000 compensation appropriate - COUNTERCLAIM - Recovery of monies - Respondent sought repayment of alleged salary advances - Applicant denied any salary advances made - Respondent provided no evidence to support claim - Respondent also sought reimbursement of costs to repair company vehicle applicant damaged - Applicant admitted damaged vehicle - When damage reported at time respondent took no action Authority found respondent had no grounds to revive issue post dismissal - Claims dismissed - COSTS - Applicant to be reimbursed filing fee - Senior Sales Consultant |
| Result | Application granted (Unjustified dismissal) ; Compensation for humiliation etc ($3,000) ; Application dismissed (Unjustified disadvantage) ; Application dismissed (Counterclaim) ; Disbursements in favour of applicant ($70) |
| Main Category | Personal Grievance |
| Statutes | ERA s4(4)(c);ERA s4(4)(d);ERA s66;ERA s66(1)(a);ERA s66(2)(a);ERA s66(4);ERA s124 |
| Cases Cited | Canterbury Westland Free Kindergarten Association (t/a Kidsfirst Kindergartens) v New Zealand Educational Institute [2004] 1 ERNZ 547;Williams v Attorney-General [1999] 2 ERNZ 457 |
| Number of Pages | 7 |
| PDF File Link: | aa 89_08.pdf [pdf 30 KB] |