| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 394/08 |
| Hearing date | 16 May 2008 - 15 Oct 2008 (8 days) |
| Determination date | 18 November 2008 |
| Member | A Dumbleton |
| Representation | N Chiu (Applicant in person) ; I Davidson |
| Location | Auckland |
| Parties | Chiu v New Deli & Cafe Ltd and Anor |
| Other Parties | New Gusto Cafe Ltd |
| Summary | PRACTICE AND PROCEDURE – Respondents two separately incorporated companies with same directors – Written employment agreement stated both respondents were “The Employer” – Authority found applicant employed by both respondents at same time – UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Applicant advised respondent that pregnant – Applicant raised disadvantage grievance with respondents, stating disadvantaged and discriminated against by reason of pregnancy – Applicant dismissed two days later – Alleged ground for dismissal was failure to provide proof of eligibility to legally work in New Zealand – Respondent offered job back on condition applicant provided proof of immigration status - Applicant claimed dismissal unjustified due to discrimination by reason of pregnancy – Respondent denied claims, and argued applicant employed 3 weeks, not six months - Conflict in evidence as to term of employment – Parties called evidence from customers of caf�, past and present employees, telephone records, forensic examination of handwriting, bus tickets and bank deposit receipts – Authority found more than likely that applicant employed for over six months, and that respondents called false evidence - Authority rejected respondent’s alleged justification for dismissal – Accepted applicant’s evidence that already provided satisfactory proof of eligibility to work so did not provide it again when requested – Found respondent’s real concern likely impending disclosure to IRD of respondent’s failure to pay PAYE on wages when applicant applied for paid maternity leave – Applicant’s immigration status pretext for dismissal - Real reason applicant’s pregnancy or impending parental status and its further consequences – No justification for dismissing applicant on grounds of pregnancy – Dismissal unjustified – Due to close proximity in time and event, Authority found dismissal grievance subsumed disadvantage and discrimination grievances – Found in any case, no actual disadvantage or discrimination occurred prior to dismissal - Remedies – No contributory conduct – Authority considered when applicant would have stopped work due to pregnancy – Requirement to mitigate loss considered against respondent’s failure to attend mediation in timely manner – Thirteen weeks lost wages awarded – Applicant suffered substantial emotional harm through dismissal and loss of chance to secure maternity leave – Harm aggravated by respondent’s conduct in persisting with false evidence and insulting insinuations about applicant - $8,000 compensation appropriate - PARENTAL LEAVE – Authority found unjustified dismissal prevented applicant from applying for maternity leave – No reason why application would not have been accepted – Entitled to compensation for loss of opportunity – Authority considered compensation for loss of expected statutory benefit could be awarded under s123(1)(c) ERA – Civil remedy of compensatory damages for breach of contract also available under s162 ERA – Loss quantifiable as would have received 14 weeks pay – Loss directly and foreseeably arose from respondent’s unlawful act of unjustified dismissal, and not remote consequence – Authority awarded sum to restore applicant to position if opportunity to apply for paid maternity leave not unlawfully taken away - ARREARS OF WAGES – Authority found applicant received holiday pay for three weeks rather than six months – Authority accepted applicant’s calculations – Holiday pay owing - Two days pay also owing - COSTS – Applicant represented self – No costs or disbursements awarded - Waitress |
| Result | Application granted (unjustified dismissal) ; Arrears of wages ($239.20) ; Arrears of holiday pay ($1,384.27)(Interest 6%) ; Reimbursement of lost wages ($8,023,60)(Interest 6%) ; Compensation for humiliation etc ($8,000) ; Compensation for loss of benefit of paid parental leave ($4,619.47) ; Application dismissed (unjustified disadvantage) ; No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(c);ERA s105(1)(a);ERA s123(1)(c)(ii);ERA s128(2);ERA s131;ERA s162;Holidays Act 2003 s74(1);Human Rights Act 1993 s21;Immigration Act 1987;Parental Leave and Employment Protection Act 1987 s7;Parental Leave and Employment Protection Act 1987 Part 7A;Tax Administration Act 1994 s143 |
| Cases Cited | Orakei Group (2007) Ltd (formerly PRP Auckland Ltd) v Doherty [2008] ERNZ 345 |
| Number of Pages | 35 |
| PDF File Link: | aa 394_08.pdf [pdf 101 KB] |