| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 62/09 |
| Hearing date | 18 Feb 2009 |
| Determination date | 25 February 2009 |
| Member | R A Monaghan |
| Representation | A Nimick (Applicant in person) ; I Carter |
| Location | Auckland |
| Parties | Nimick v Xegen Internet Technologies Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed following altercation with respondent regarding arrears of holiday pay, expenses and salary – Applicant entered into new employment agreement (“EA”) beginning of second year of employment – EA provided salary increase and entitlement to annual leave consistent with Holidays Act 2003 (“HA 2003”) – S16 HA 2003 provided employee entitled to four weeks paid annual holidays at end of 12 months continuous employment – EA provided annual leave to be taken at time agreed to by parties - Applicant received paid annual leave in advance of entitlement but mistakenly believed entitled to annual leave not taken during first year of employment – Remainder of applicant’s entitlement was only available for use when employment ended or taken in terms of the EA - Applicant requested respondent pay outstanding salary, holiday pay and stated legal action be taken if payments not made – Matters escalated – Applicant dismissed – Respondent retracted dismissal two days later and requested meeting to resolve employment relationship problems – Applicant claimed parties needed to agree to new EA with payment of full salary and outstanding holiday pay – Applicant received salary and arrears of expenses but not holiday pay – Authority found dismissal substantively and procedurally unjustified - REMEDIES – Found contributory conduct due to applicant’s unreasonable demand for holiday pay– No award of lost wages made – Found respondent’s retraction of dismissal was an offer of reinstatement, however, applicant declined offer because of mistaken belief unused leave was owed – Found $1,000 compensation appropriate after contribution – ARREARS OF HOLIDAY PAY - Order of $9,254 holiday pay made due to completion of 12 months continuous employment at time of dismissal – COSTS – Applicant represented self – Applicant entitled to filing fee – Technical and Marketing Manager |
| Result | Application granted ; Compensation for humiliation etc ($1000 after contribution) ; Arrears of holiday pay ($9,254.82) ; Disbursement in favour of applicant ($70.00)(Filing fee) |
| Main Category | Personal Grievance |
| Statutes | Holidays Act 2003 s16 |
| Cases Cited | Finau v Carter Holt Building Supplies [1993] 2 ERNZ 971 |
| Number of Pages | 7 |
| PDF File Link: | aa 62_09.pdf [pdf 27 KB] |