| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 310A/08 |
| Hearing date | 14 Oct 2008 |
| Determination date | 15 October 2008 |
| Member | R Arthur |
| Representation | J Thomas (in person) ; D Walkinshaw (in person) |
| Location | Auckland |
| Parties | Thomas v Walkinshaw & Anor |
| Other Parties | DRJT Ltd |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – First respondent sole shareholder and director of second respondent – First respondent argued employment relationship was between applicant and second respondent – No written employment agreement – Business invoices referred to “Bike 360,” not second respondent – Applicant did not receive payslips or pay cheques while employed so not aware second respondent identified on those – First respondent’s email address referred to second respondent, but did not state it was limited liability company – Applicant not aware “Bike 360” was trading name of second respondent – Found first respondent’s intention that second respondent was employer, and identity of second respondent, not communicated to applicant – Second respondent was undisclosed principal at time first respondent employed applicant – First respondent did not discharge onus to identify principal to applicant, so applicant entitled to pursue first respondent personally - UNJUSTIFIED DISMISSAL - Tension in employment relationship due to incidents relating to applicant’s absence from work and applicant not been paid – After heated discussion, first respondent told applicant to “finish up” as was no longer needed – Authority found communication broke down, but issues did not justify summary dismissal – First respondent argued agreed before employment began that if employment unsuccessful, parties would just shake hands and move on – Authority found arrangement could not preclude basic employment right to have problems addressed in good faith before either party took unilateral steps to terminate employment – Dismissal unjustified – Remedies – Shop closed four weeks after dismissal, so only four weeks lost wages appropriate – Compensation for humiliation and injury to feelings appropriate as applicant devastated by sudden dismissal and embarrassed when knowledge of dismissal from bike shop emerged in cycling circles – Ten percent contributory conduct appropriate due to applicant’s inadequate communication and provocative comments to other staff about pay – ARREARS OF WAGES – After mediation, applicant paid for 84 hours work – Applicant claimed owed 12 more hours wages – In absence of time and wage records, Authority accepted applicant entitled to further wages and holiday pay – Interest at nine percent from date of dismissal – COSTS – Applicant not entitled to costs for legal advice relating to preparation for and attendance at mediation – Applicant entitled to lodgement fee – Other costs reserved – Bike shop sales assistant |
| Result | Application granted (dismissal) ; Reimbursement of lost wages ($2,754) ; Compensation for humiliation etc ($2,250) ; Arrears of wages and holiday pay ($220.32) ; Interest on arrears ($28.41) ; Disbursements in favour of applicant ($70)(filing fee) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Cuttance v Perkis [1994] 2 ERNZ 321 |
| Number of Pages | 9 |
| PDF File Link: | aa 310a_08.pdf [pdf 29 KB] |