| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 413/08 |
| Hearing date | 16 Oct 2008 |
| Determination date | 05 December 2008 |
| Member | V Campbell |
| Representation | M Stockman (in person) ; A Henrich |
| Location | Hamilton |
| Parties | Stockman v Garrett Automotive Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent’s failure to provide written employment agreement (“EA”) despite applicant’s many requests – Applicant also claimed unjustifiably disadvantaged when did not receive NZQA credits and pay increments – Applicant claimed following completion of pre-apprenticeship training course, applicant sought from respondent, and parties agreed to apprenticeship – Respondent argued applicant employed full time but agreed waiting until applicant demonstrated level 3 skills before offering apprenticeship agreement – No dispute applicant did not reach level 3 during employment – No dispute applicant did not enter formal apprenticeship agreement with respondent – Authority found parties entered into agreement for full time employment – Found on balance of probabilities more likely than not applicant not employed as apprentice at commencement of employment – Found applicant never formally assessed during employment – Found applicant had not proven entitled to NZQA credits as no formal assessment to confirm applicant achieved requisite competency – Found parties had not entered agreement that applicant would receive pay increments during employment – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed no option but to leave respondent as had no EA, respondent refused to enter formal apprenticeship agreement, received no pay increases, and not credited unit standards – Applicant also claimed stress a factor in resignation decision – Authority found pay increments and NZQA credits not satisfactorily established – Found applicant had raised several times concerns over not having formal EA or apprenticeship agreement – Found lack of written EA impinged of employment relationship to significant extent – Found had respondent put terms of employment in writing, would have been clear, formal apprenticeship agreement not being offered until satisfied applicant equivalent to level 3 – Found applicant entered into EA with respondent on basis at some stage would become apprentice – Found respondent fully aware of applicant’s desire to enter formal apprenticeship agreement – Found foreseeable in absence of written EA incorporating formal apprenticeship applicant would leave employment to secure apprenticeship elsewhere – Found fair and reasonable employer would have ensured written EA developed and negotiated either prior to or within three months of applicant commencing employment – Found failure to provide written EA amounted to serious breach warranting repudiation of employment by applicant – Applicant constructively dismissed – Remedies – Applicant only sought reimbursement of lost wages from time left respondent to time commenced new employment – Authority found applicant entitled to $6,000 reimbursement of lost wages – PENALTY – Authority found respondent had breeched Employment Relations Act 2000 by failing to provide written EA – However, claim for penalty not commenced in time – Mechanic |
| Result | Application dismissed (Disadvantage) ; Application granted (Constructive dismissal) ; Reimbursement of lost wages ($6,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s64;ERA s103A;ERA s03(1)(a);ERA s103(1)(b);ERA s135(5) |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authority Officers IUOW Inc [1994] 1 ERNZ 168;Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 1 NZLR 372;Malik v Bank of Credit and Commerce International SA (in liq) [1998] AC 20 ; [1997] 2 All ER 1 |
| Number of Pages | 9 |
| PDF File Link: | aa 413_08.pdf [pdf 39 KB] |