| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 344/09 |
| Hearing date | 22 Jul 2009 |
| Determination date | 24 September 2009 |
| Member | V Campbell |
| Representation | S Scott ; M Flyger |
| Location | Auckland |
| Parties | Draper v Modern Transport Engineers (2002) Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Applicant claimed unjustifiably dismissed - Respondent claimed employment ended pursuant to fixed term employment agreement - Applicant signed three employment agreements (“EA”) - First EA used for applicant’s application for work permit - No dispute first EA was for permanent position - Second EA replaced first EA as first EA did not meet requirements of Holidays Act 2003 - Second EA purported to be for fixed term starting before applicant approached respondent looking for work - Authority found respondent did not intend second EA to be fixed term; rather intended to reflect immigration requirements - Third EA signed day applicant commenced employment and respondent claimed was for fixed term - Senior Manager (“M”) for respondent claimed made handwritten alterations to third EA specifying start and finish date - Respondent relied on third EA to justify fixed term agreement - Authority not satisfied third EA genuine fixed term agreement - Authority found only difference between third EA and previous two was handwritten changes to start and finish dates - Found third EA contained clauses consistent with permanent employment - Found position applicant offered and accepted was permanent position - Found third EA did not meet requirements of s66(4) Employment Relations Act 2000 (“ERA”) as did not specify reason for fixed term - Respondent relied on Court of Appeal case to support contention that required specificity met when M told applicant EA for fixed term - Applicant denied M told him EA was fixed term and claimed handwritten changes not on third EA when he signed it - Authority found Court of Appeal case effectively overruled when s66 ERA amended - Found applicant entitled to treat any provision in EA purporting to end employment on specified day as invalid - Found any dismissal in reliance on fixed term unjustified - Authority found respondent’s actions and how acted unjustified - Dismissal unjustified - Remedies - Found applicant may have had performance issues but not dismissed for poor performance - No contributory conduct - Applicant took steps to mitigate loss - Applicant entitled to reimbursement of lost wages from dismissal date to date started new employment - Interest awarded - Authority accepted applicant found dismissal distressing - Applicant had new baby and had recently immigrated - Award of $5,000 compensation appropriate - No job title given |
| Result | Application granted ; Reimbursement of lost wages (15 weeks) ; Interest (5%) ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s66;ERA s66(4);ERA s66(6);ERA s103A;ERA s124;ERA Second Schedule cl11(1);Holidays Act 2003 |
| Cases Cited | Brockett v Transpacific Technical Services (NZ) Ltd unreported, R Arthur, 4 Dec 2007, AA 382/07;Norske Skog Tasman Ltd v Clarke [2004] NZCA 74 |
| Number of Pages | 6 |
| PDF File Link: | aa 344_09.pdf [pdf 33 KB] |