| Summary |
UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed and owed wages, repatriation costs and special disbursements – Applicant Philippino nurse engaged through agency to work for respondent as live-in caregiver for two year fixed term – Respondent confined to wheelchair and required two carers – Authority noted applicant required work permit, so employment with respondent and residence in New Zealand (“NZ”) governed by immigration as well as employment law – After three months’ employment, incident occurred with other carer (“C”) – Applicant claimed C verbally abused her and used racist language – Applicant claimed felt unsafe as result of altercation and also anxious about use of marijuana in house – Applicant suggested to respondent could find alternative accommodation but continue to otherwise fulfil obligations under employment agreement (“EA”) – Respondent understood applicant to have proposed that applicant not complete contract in its entirety – Respondent arranged for applicant to be repatriated to Philippines by purchasing air ticket – EA required respondent to pay for applicant’s return ticket at conclusion of employment – Respondent understood that in absence of approved employer under immigration rules, applicant had no authority to stay in NZ – Applicant distressed as did not wish to leave NZ – Applicant applied for change to conditions of work permit so could work elsewhere in NZ – Application took three months during which time applicant had no income or access to benefit – Authority found communication breakdown occurred – Found applicant abandoned employment by telling employer unable to continue living-in, which was fundamental term to EA - Notion of live-in carer ceasing to live-in not tenable – Fundamental term could not be unilaterally varied by applicant – Authority found respondent obligated to deal with difficulties between applicant and C – Found respondent not liable in circumstances because applicant did not advise respondent of difficulties – No dismissal – Authority found respondent believed following legal obligations by purchasing return air ticket – Respondent under mistaken understanding airline withholding refund because Immigration Department had influence in matter – Found respondent should pay applicant value of remainder of airline ticket which respondent purchased in applicant’s name – Respondent to pay $1,000 contribution to applicant's airfare to Phillipines - DISPUTE – Hours of work – Applicant claimed required to work continuously – Authority found EA stipulated was split shift arrangement – Found carers required to be on duty morning and evening, but respondent only required one carer in afternoons – Found applicant mistaken and communication breakdown again occurred – COSTS – Applicant sought costs – Respondent to pay applicant sum of $500 as contribution to expenses incurred in applying for variation to work permit and cost of representation - Caregiver |