| Summary |
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE – Applicant claimed respondent’s sole director (“V”) publically alleged on several occasions that applicant responsible for missing money and lost beer – Also claimed V publically demanded applicant return keys - Applicant claimed left workplace as felt unable to stay and was effectively dismissed at this or later point – Applicant’s doctor advised time off work due to stress – Applicant sent V letter suggesting meeting – Applicant received V’s acceptance after meeting date because address on applicant’s medical certificate erroneous – Upon expiry of medical certificates, applicant telephoned respondent to discuss return to work – Applicant advised by co-worker that no longer on roster – Following week, respondent telephoned and was again advised that not on roster – Applicant inferred employment terminated – V argued applicant abandoned employment – V argued did not contact applicant because risked aggravating applicant’s stress and applicant not on roster because possibility that unfit for work – Authority noted if found applicant was dismissed, would follow that dismissal unjustified because no due process or good cause – Authority found respondent’s enquiries and requiring applicant and co-worker to return keys proportionate and legitimate responses to loss of money – Found although applicant embarrassed, respondent’s actions not predetermination, accusation or disciplinary – Authority did not accept respondent deliberately ignored applicant’s communications – Authority accepted V fairly and reasonably restrained from contacting applicant due to concern would aggravate stress – Authority noted applicant did not ask to speak to V, instead erroneously concluding dismissed – Found good faith entailed two-way communication – Found V surprised when told by Work and Income that applicant not employed by respondent, as thought applicant on stress leave – Found applicant’s counsel’s letter alleged unjustified dismissal, rather than enquiring as to employment status – Authority found V’s relative passivity did not amount to deliberate repudiation of employment relationship – No unjustified disadvantage or dismissal - PENALTY – No written employment agreement (“EA”) – Respondent argued intention of s63A Employment Relations Act 2000 (“ERA”) was employee must bring action within year of time aware that not offered written EA prior to orally accepting employment - Authority rejected argument on plain reading of words “reasonably have known” in s135(5)(b) ERA – Also found applicant acted promptly when advised of law - Found absence of written EA did not contribute to applicant’s grievance – Penalty payable to Crown - ARREARS OF WAGES AND HOLIDAY PAY – Parties agreed Labour Inspector to assist arrears claim – Respondent since paid applicant holiday pay for days in lieu, claiming payment out of good conscience, not because conceded monies owed – Authority not satisfied delay in payment was evidence of respondent deliberately attempting to escape obligation, so no penalty imposed – For completeness, Authority directed above arrears be paid to applicant, with interest – Authority found although “pay as you go” holiday pay component specified on payslips, no evidence of agreement for holiday pay to be paid on that basis - Authority obliged to accept applicant’s claim that never agreed to “pay as you go” arrangement and entitled to holiday pay – Parties to agree on quantum with assistance of Labour Inspector – Penalty not appropriate as respondent attempted to meet obligations under Holidays Act 2003 – Authority found Labour Inspector to identify any shortfall leaving parties to settle matter on own terms - Barman |