| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 1/09 |
| Hearing date | 17 Dec 2008 |
| Determination date | 06 January 2009 |
| Member | P Cheyne |
| Representation | A Riches ; J Shingleton |
| Location | Christchurch |
| Parties | Houghton v The Perfect Food Company Ltd |
| Summary | PRACTICE AND PROCEDURE – Whether causal worker or permanent employee – Applicant and respondent informally discussed employment prospects – Conflict of evidence as to matters discussed – Applicant started working regular shifts - Applicant later received ongoing work – Respondent lent applicant money and parties agreed applicant’s wages be deducted until outstanding sum paid – Authority found verbal employment agreement (“EA”) – Found parties’ repayment agreement indicated ongoing employment relationship – Applicant permanent employee – UNJUSTIFIED DISMISSAL – Constructive dismissal - Applicant claimed constructively dismissed following refusal to sign new EA – Respondent claimed offer of written EA declined – Respondent received reports regarding applicant’s conduct – Concerns not raised but prompted respondent to obtain written EA – Respondent presented applicant with new EA stating “exact update replica” of verbal EA – Written EA contained retrospective starting date, two month trial period, new hours, right of employer to roster shifts through 24 hour day – These provisions not present in verbal EA - Applicant declined EA and altercation occurred – Suspension letter citing unlawful to employ staff without written EA sent – Respondent demanded repayment of loan and withheld proceeds owing to applicant upon repayment – Applicant claimed breach of Wages Protection Act 1983 (“WPA”) – Authority found resignation due to breach of duty – Found withholding wages until acceptance of new EA breached WPA and duty – Found new and previous EA substantially different – Found applicant entitled to continue under verbal EA and respondent’s refusal to be bound breached duty – Found failure to comply with requirements for written EA does not affect validity of verbal EA under s63A(4) Employment Relations Act 2000 (“ERA”) – Found respondent breached fair bargaining obligations by imposing new provisions – Employer is obligated to provide copy of intended EA to employee, inform employee to get independent advice and give opportunity to obtain advice before employment commences under s65 ERA - Found breach sufficiently serious to make resignation reasonably foreseeable – Dismissal unjustified – REMEDIES – No contributory conduct – 10 weeks lost wages reimbursed - $1,000 compensation appropriate as weak claim for hurt and humiliation – Driver |
| Result | Application granted ; Reimbursement of lost wages ($4,000); Compensation for humiliation etc ($1,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s63A(4);ERA s65;ERA s128;Wages Protection Act 1983 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers’ IUOW Inc [1994] 1 ERNZ 168;Auckland etc Shop Employees’ etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963 |
| Number of Pages | 9 |
| PDF File Link: | ca 1_09.pdf [pdf 32 KB] |