| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 161/08 |
| Hearing date | 17 Apr 2008 |
| Determination date | 30 April 2008 |
| Member | L Robinson |
| Representation | L Qiang ; D Liu |
| Location | Auckland |
| Parties | Tian v Hollywood Bakery (Holdings) Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant sought withdrawal of written warning, apology and compensation – Authority granted urgency to investigation due to continuing employment relationship problem between parties – No written employment agreement (“EA”) – At workplace, applicant’s supervisor (“Z”) encountered applicant’s ex-husband (“L”) shouting and swearing at applicant due to his displeasure with applicant’s cleaning duties – Following day applicant advised Z that would no longer carry out cleaning tasks – Z unhappy but concluded there was nothing could do about it – City council issued First Notice of Non Compliance of Food Premises – Z informed one of respondent’s directors (“W”) of applicant’s issue – W issued written warning that would be asked to leave within two weeks if performance did not improve – Applicant still refused to perform cleaning duties - W wrote further letter instructing attendance at disciplinary meeting – Applicant did not attend meeting but lodged employment relationship problem – Authority found applicant’s refusal due to L’s influence - Found applicant’s duties no business of L and L had no place behaving inappropriately at workplace – Applicant argued duties did not include certain cleaning duties – Authority noted problem could have been avoided if duties recorded in written EA – Authority found applicant’s duties included cleaning – Found respondent did not adequately communicate alleged failure of food safety standards – Found no evidence of applicant being given instruction by Z to complete cleaning tasks – Found fair and reasonable employer would not have indicated intention to give two weeks notice of termination if no improvement – Disadvantage unjustified – REMEDIES – Authority not empowered to order apologies – Authority found applicant’s refusal without consulting and discussing with employer to perform duties employed to do was blameworthy conduct – Duty of good faith required applicant to pursue proper mechanisms to resolve matter – 20 percent contributory conduct – Applicant wrote letter to respondent stating warning was insult and defamation – Modest compensation for hurt and humiliation appropriate - Authority advised respondent to formalise written EA as matter of priority – COSTS – Applicant not represented by professional advocate – No order for costs - Kitchen hand/Dishwasher |
| Result | Application granted ; Compensation for humiliation etc ($1,000 reduced to $800) ; Costs to lie where they fall |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Number of Pages | 7 |
| PDF File Link: | aa 161_08.pdf [pdf 28 KB] |