| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 237/09 |
| Hearing date | 9 Jul 2009 |
| Determination date | 16 July 2009 |
| Member | R Arthur |
| Representation | M Single ; No appearance |
| Location | Auckland |
| Parties | Bregmen-Lyon v Zhao & Dai Ltd t/a Pizza Fresco"" |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Constructive dismissal – No appearance for respondent – Applicant claimed resignation due to breach of oral employment agreement (“EA”) – Applicant offered and accepted promotion at respondent – Respondent’s director (“L”) unilaterally reduced applicant’s work hours and changed applicant’s designation from manager to cashier – Applicant sent L text message protesting changes – Respondent issued applicant with written warning alleging verbal warning previously issued after applicant lodged personal grievance claim – Applicant resigned – Authority found applicant had benefit of implied mutual trust, confidence and fair dealing in absence of written EA – Found respondent’s unilateral actions breached implied terms therefore reasonably foreseeable applicant would resign – Constructive dismissal unjustified – REMEDIES – No contributory conduct – Applicant sought firstly, reimbursement of three months lost wages for period between when hours first reduced and when employment ended – Sought secondly, reimbursement of lost wages for difference between hourly rates at current employment and employment at respondent – Authority found respondent entitled to change applicant’s hours if consultation held – Found no agreement guaranteeing applicant fixed hours – Found first claim to be calculated on notional period of proper consultation and notice, therefore difference between 55 and 30 hours per week for one month period totalling $1,500 – Found reimbursement of $480 for difference between hourly rates appropriate – Found compensation for humiliation of $3,000 appropriate – PENALTY – Applicant sought penalty for respondent’s failure to provide written EA – Authority declined penalty as claim outside limitation period; respondent’s delay in providing wage and time records did not cause applicant prejudice; and respondent’s failure to follow Authority’s direction already operated to their detriment – Penalty declined – COSTS – Found reasonable contribution to costs of $400 appropriate – Store Manager |
| Result | Application granted ; Application dismissed (Penalty) ; Reimbursement of lost wages ($1980) ; Compensation for humiliation etc ($3,000) ; Costs in favour of applicant ($400) ; Disbursements in favour of applicant ($70)(Filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s63A;ERA s124;ERA s135(5) |
| Number of Pages | 7 |
| PDF File Link: | aa 237_09.pdf [pdf 25 KB] |