| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 264/08 |
| Hearing date | 14 May 2008 |
| Determination date | 21 July 2008 |
| Member | V Campbell |
| Representation | J Watson ; J Hardaker |
| Location | Hamilton |
| Parties | Soo Han v Ko & Won Ltd t/a Kino Sushi |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed - Respondent argued applicant failed to provide documents requested to show legally entitled to work in New Zealand and therefore dismissal justified – Applicant undertook voluntary unpaid training with respondent, then employed permanently – Applicant began working longer hours than agreed so asked respondent to revert to agreed hours - Also raised issues over food safety – Authority satisfied respondent said issues not applicant’s business – Respondent declined applicant’s request for pay rise – Applicant claimed respondent dismissed him, was given one week’s notice, and that four days later respondent asked for keys and told applicant not to come to work next day – Respondent argued made written request for immigration documents prior to dismissal – Authority found postmark showed applicant could not have received letter until days after dismissal – Authority satisfied applicant showed respondent copy of work permit from passport on first day of paid employment – Finding supported by that day being transition from voluntary unpaid training to paid employment and day respondent revealed recipes and secrets to applicant as had said would not do so until applicant officially employed – Respondent had assisted applicant in work permit application – Letter of offer of employment included in work permit application – Authority found respondent dismissed applicant when asked for keys and said not to come to work next day – Found dismissal carried out without procedural fairness or justification – Dismissal unjustified – Remedies – Applicant claimed lost wages for period until found alternative employment – Claimed did not consider respondent’s offers that job available to him if produced documentation to be genuine offers, so took no steps to meet those demands – Authority found respondent’s letters not genuine so applicant entitled to lost wages for period until found alternative employment ($6,346) – Applicant claimed difference between wage with respondent and replacement employment for two year period – Based claim on letter of appointment which stated two year fixed term employment – However, could not rely on letter as being effective fixed term agreement as did not comply with s66 Employment Relations Act 2000 – Claim failed – Applicant sought compensation for humiliation – Authority found job important to applicant as tied to work permit – Distress to applicant and family exacerbated by respondent’s attempts to portray dismissal as applicant’s fault – No contributory conduct – Compensation of $3,000 appropriate - ARREARS OF WAGES – Authority found applicant not paid for final two weeks of employment – Applicant entitled to arrears ($1,153) - Chef |
| Result | Application granted (Unjustified dismissal) ; Reimbursement of lost wages ($6,346.15) ; Arrears of wages ($1,153.84)(2 weeks) ; Compensation for humiliation etc ($3,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s66;ERA s124 |
| Number of Pages | 7 |
| PDF File Link: | aa 264_08.pdf [pdf 26 KB] |