| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 133/09 |
| Hearing date | 17 Jun 2009 |
| Determination date | 21 August 2009 |
| Member | P Cheyne |
| Representation | R Askin (in person) ; A Gulati (in person) |
| Location | Christchurch |
| Parties | Askin v Gulati & Anor |
| Other Parties | Avinash Enterprises Ltd |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Statement of problem misspelt surname of first respondent (“G”) – Authority made amendment – G sole shareholder and director of second respondent company – Applicant paid by cash or cheque, where cheques cited second respondent – Authority found cheque only indication to applicant that employer not G personally – Found G failed to disclose employed applicant on behalf of entity other than himself, so applicant entitled to sue G personally - Respondents jointly and severally responsible for any sums owed - SEXUAL HARASSMENT – Applicant claimed G called and sent text message asking to go for drive – Applicant replied not interested and matter went no further – Authority found G’s text message and phone call could be regarded as indirect request for sexual activity, but not accompanied by threat to employment – Found advances unwelcome but not of such nature, nor repeated, to have detrimental effect – Found conduct did not amount to sexual harassment under s108 Employment Relations Act 2000 – Applicant complained to G that was touched inappropriately and subject of sexual advances by co-worker – Authority found no sexual harassment personal grievance because unwelcome behaviour stopped after G spoke to co-worker - UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed resigned after G dropped hourly rate from $12.50 to $9 – G argued applicant’s work deteriorated so hourly wage reduced to $11.25 – Authority rejected G’s argument that applicant’s work deteriorated – Authority found applicant resigned in response to G’s unlawful behaviour in unilaterally reducing pay – Found seriously breached respondents’ obligations to applicant and reasonably foreseeable applicant would resign in response – Dismissal unjustified – Remedies – No evidence of lost remuneration, so no award – Compensation awarded only for dismissal, not for upset caused by alleged sexual harassment incidents – Modest compensation of $2,500 appropriate - ARREARS OF WAGES – Applicant casual employee and paid on irregular basis by irregular means – G provided notebook of hours worked – Applicant disputed accuracy of notebook but did not have own record – Authority found contractually agreed rate of pay $12.50 hour – Found respondents failed to keep proper time and wage records, so impossible to accurately quantify arrears of wages and holiday pay – Authority found appropriate to reverse onus of proof for arrears claim – Authority accepted applicant’s calculation of arrears of wages – ARREARS OF HOLIDAY PAY – Authority found applicant not paid holiday pay entitlements – Authority based holiday pay calculation on G’s notebook – Found arrears of holiday pay owing – Authority noted respondents fortunate applicant did not instruct lawyer because number of breaches occurred which could have sought penalties for - COSTS – Applicant represented self – Applicant entitled to filing fee |
| Result | Applications granted (dismissal)(arrears of wages)(arrears of holiday pay) ; Application dismissed (sexual harassment) ; Compensation for humiliation etc ($2,500) ; Arrears of wages ($71.75) ; Arrears of holiday pay ($156.50) ; Disbursements in favour of applicant ($70)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s108;ERA s108(1)(b);ERA s132(2) |
| Number of Pages | 7 |
| PDF File Link: | ca 133_09.pdf [pdf 21 KB] |