| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 182/09 |
| Hearing date | 24 Sep 2008 - 26 Mar 2009 (2 days) |
| Determination date | 15 June 2009 |
| Member | J Wilson |
| Representation | R Syed ; R Sharma |
| Location | Auckland |
| Parties | Kumar v Hobden Screen Art 2007 Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed constructively dismissed following underpayment of wages and breach of duty –Applicant immigrant worker and commenced employment without work permit – Applicant raised with respondent concerns about wage rate, long work hours and unsafe work conditions – Applicant told respondent suffered work-related injuries and claimed respondent replied applicant should look for another job and threatened to withdraw work permit – Applicant resigned – Respondent claimed applicant signed employment agreement (“EA”) agreeing to $12 per hour – Claimed applicant paid for additional hours worked – Claimed workplace safe – Authority found signature on EA probably forged by respondent – Found applicant entitled to $17 per hour – Found inconclusive evidence to establish workplace unsafe – Found medical certificate did not establish injuries caused by workplace conditions – Found applicant failed to “forcefully” bring concerns to respondent’s attention – However, respondent aware of concerns and probable respondent threatened applicant to constrain attempts to remedy grievances – Found reasonably foreseeable applicant would resign if concerns left unresolved – Dismissal unjustified – REMEDIES – No contributory conduct – Found $4,000 compensation appropriate - Reimbursement of holiday pay and 4 weeks lost wages at $17 per hour – ARREARS OF WAGES – Authority ordered respondent to pay additional $5 per hour for all hours applicant worked and holiday pay on sum owed – Painter |
| Result | Applications granted ; Reimbursement of lost wages and holiday pay ($2,937.60) ; Underpayment of wages (Quantum to be determined by parties) ; Compensation for humiliation etc ($4,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] ACJ 963;Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union Of Workers Inc [1994] 1 ERNZ 168 |
| Number of Pages | 8 |
| PDF File Link: | aa 182_09.pdf [pdf 30 KB] |