| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 410/09 |
| Hearing date | 16 Nov 2009 |
| Determination date | 18 November 2009 |
| Member | R A Monaghan |
| Representation | M Lee ; No appearance |
| Location | Auckland |
| Parties | Cheng v Bai |
| Summary | UNJUSTIFIED DISMISSAL - Poor performance - No appearance for respondent - Applicant applied for and granted order for substituted service via email and advertisement in newspaper - Applicant employed to work on residential building site - Applicant claimed respondent told him work to be stopped temporarily and would be contacted about alternative work shortly - When applicant not contacted, went back to building site - Respondent claimed applicant made mistake and would sue applicant over it - Respondent filed proceedings in District Court claiming applicant cut part of prefabricated framing when should not have, causing loss - Applicant claimed not given details of alleged mistake at time - Claimed work closely supervised by respondent - Authority found likely applicant cut framing and issue was applicant’s culpability in terms of instruction and supervision - As respondent provided no evidence Authority accepted applicant’s account of events - Found reason for dismissal could not be substantiated - Dismissal unjustified - Remedies - No contributory conduct - Applicant unemployed since dismissal - Authority satisfied applicant attempted to mitigate loss - However, given project nearly completed, other projects not ready to start, and economic conditions, applicant may have been made redundant - Not appropriate case to exercise discretion to award more than three months lost wages - Three months reimbursement of lost wages awarded - Applicant provided little evidence of hurt and humiliation caused by dismissal - Evidence concerned reaction to District Court proceedings - Authority unable to compensate for damage to reputation - However, applicant suffered injury by being dismissed for mistake believed not responsible for - $1,000 compensation appropriate - ARREARS OF WAGES - Applicant owed four days’ wages - Respondent to pay applicant $648 - Builder’s Labourer |
| Result | Applications granted ; Reimbursement of lost wages ($11,700) ; Compensation for humiliation etc ($1,000) ; Arrears of wages ($648) ; Interest (4.8%) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s128;ERA Second Schedule cl12 |
| Cases Cited | In the bankruptcy of Peter Anton Franck unreported, Clifford J, 24 April 2009, CIV 2009 435 77 |
| Number of Pages | 6 |
| PDF File Link: | aa 410_09.pdf [pdf 22 KB] |