| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 1/09 |
| Hearing date | 8 Sep 2008 |
| Determination date | 05 January 2009 |
| Member | V Campbell |
| Representation | M Hope ; J Grey |
| Location | Thames |
| Parties | Whinn v Tairua Landing Ltd |
| Summary | BREACH OF CONTRACT – Directors and shareholders of respondent were husband (“A”) and wife (“B”) - Applicant claimed was offered and accepted supervisor position but offer withdrawn by respondent breaching employment agreement (“EA”) – Authority found EA offered and applicant accepted front of house position only – Applicant claimed unilateral reduction of wages – Found deductions were PAYE deductions – Applicant claimed unlawful deduction from final pay – Found agreement made between parties to deduct costs course undertaken by applicant if applicant left respondent’s employment before agreed date, whether or not applicant was dismissed – No breach - UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustified written warnings caused disadvantage – Chef (“F”) received two complaints regarding applicant’s conduct from customer (“S”) – F reported incidents to respondent – Respondent interviewed F and S and first written warning issued – Second written warning issued after applicant left workplace early without notice, refused to discuss issues and demonstrated rude behaviour to staff – Authority found written warnings procedurally unjustified – Found applicant not given opportunity for explanation on both occasions – Disadvantage unjustified – REMEDIES – Found 50 per cent contributory conduct – Found $500 compensation appropriate after contribution - UNJUSTIFIED DISMISSAL – Misconduct - Applicant dismissed following unprovoked attack on B – B attempted to discuss work issues with applicant - Applicant refused to talk and pushed B causing B to fall – B unsuccessfully tried to contact applicant – A sent text message dismissing applicant for serious misconduct – Found applicant’s action constituted serious misconduct however dismissal procedurally unjustified – No written notice given, no explanation sought from applicant, no opportunity for applicant to seek advice and representation – Dismissal unjustified – REMEDIES – Found 100 per cent contributory conduct – Found high likelihood of dismissal if procedural steps followed – No award of lost wages made – Front of House |
| Result | Applications granted (Unjustified disadvantage)(Unjustified dismissal) ; Application dismissed (Breach of contract) ; Compensation for humiliation etc ($1000 reduced to $500)(Disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124;Wages Protection Act 1983 |
| Cases Cited | Bilkey v Imagepac Partners, unreported, Colgan J, 24 Sep 2002, AC65/02;McCosh v National Bank, unreported, Colgan J, 13 Sep 2004, AC49/04;Mason v Health Waikato [1998] 1 ERNZ 84;NZ Storeworkers IUW v South Pacific Tyres (NZ) Ltd [1990] 3 NZILR 425;Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315;Waitakere City Council v Ioane [2004] 2 ERNZ 194 |
| Number of Pages | 11 |
| PDF File Link: | aa 1_09.pdf [pdf 46 KB] |