| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 50/09 |
| Hearing date | 12 Feb 2009 |
| Determination date | 16 February 2009 |
| Member | R Arthur |
| Representation | R Hargreaves, A Taljaard (in person) ; A Fisher (and in person) |
| Location | Auckland |
| Parties | Teremoana & Anor v Counties Milk Ltd & Anor |
| Other Parties | Anton Taljaard (Labour Inspector) ; Andrew Fenwick Fisher |
| Summary | UNJUSTIFIED DISADVANTAGE – Serious misconduct - First applicant (“T”) claimed unjustified allegations of theft and requirement to pay insurance excess caused disadvantage – First respondent (“CML”) alleged T stole milk as evidenced by video footage – T claimed no theft and footage captured a dispute with colleague over who should take milk load – No investigation conducted before conclusion of theft drawn – CML demanded T to pay insurance excess on claim for damage to truck caused by T’s careless driving – T claimed should have benefit of employer’s insurance cover – Authority found theft allegation unjustified due to no investigation – Found no record of employment agreement or express agreement for T to cover costs of damage – Found CML’s insistence T cover costs and subsequent treatment of T after refusal caused disadvantage –Disadvantage Unjustified - UNJUSTIFIED DISMISSAL – Redundancy - T claimed unjustifiably dismissed without notice – CML claimed dismissal justified for redundancy – Alternatively claimed dismissal for serious misconduct and poor performance – Authority found dismissal substantively and procedurally unjustified – Found no evidence of redundancy notice given – Found allegations of serious misconduct and poor performance not investigated and therefore no grounds for dismissal – Dismissal unjustified - REMEDIES – No contributory conduct as insufficient evidence to establish serious misconduct and poor performance – Reimbursement of three months lost wages – No award for five months lost wages due to applicant’s illness preventing full time work - $4000 compensation appropriate - ARREARS OF WAGES AND HOLIDAY PAY – Second applicant Labour Inspector (“L”) claimed arrears of wages and holiday pay on behalf of T – Authority found T entitled to arrears of wages and holiday pay – Interest payable on holiday pay - Additional interest payable on total amount of holiday pay from first day after determination until holiday pay due paid – Authority granted leave for L to bring action for recovery from second respondent of any holiday pay CML ordered to pay – Found acquisition of CML and outstanding debts provided reasonable grounds CML had insufficient funds to pay ordered amount – PENALTY – Global penalty award for failure to pay holiday pay and failure to produce wages record – COSTS – Half day investigation meeting - Found $1,500 as reasonable contribution – Costs awarded in favour of applicants – Milk deliverer |
| Result | Applications granted ; Reimbursement of lost wages ($9,900) ; Compensation for humiliation etc ($4,000) ; Arrears of wages ($2,484.62) ; Arrears of holiday pay ($8,188.60) ; Interest (4% - 6 month period)(Additional $0.89 per day on total amount of holiday pay) ; Penalty ($2,000)(Payable to Crown) ; Costs in favour of first applicant ($1,500) ; Disbursements in favour of applicants ($140)(Filing fees) |
| Main Category | Personal Grievance |
| Statutes | ERA s65;ERA s124;ERA s128(2);ERA s228;ERA s229(1)(c);ERA s234;ERA s131;ERA Second Schedule cl11;Holidays Act 2003 s75(1)(b);Holidays Act 2003 s72(2);Holidays Act 2003 s83;Holidays Act 2003 s83(1);Holidays Act 2003 s84(2) |
| Cases Cited | Telecom New Zealand Limited v Nutter [2004] 1 ERNZ 315 (CA) |
| Number of Pages | 10 |
| PDF File Link: | aa 50_09.pdf [pdf 32 KB] |