| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 453/09 |
| Hearing date | 20 Mar 2009 - 5 May 2009 (2 days) |
| Determination date | 16 December 2009 |
| Member | A Dumbleton |
| Representation | R Reed ; G Pollak |
| Location | Auckland |
| Parties | Seng & Anor v Sunshine Tiling Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Second applicant claimed unjustifiably dismissed by respondent when work permit expired – Respondent argued dismissal justified to prevent further breach of Immigration Act 1987 (“IA”) – IA made offence for employer to employ someone known not entitled to work in New Zealand – Authority found second applicant bound to resign or cease working for respondent when permit expired – Found second applicant obliged to leave New Zealand when permit expired but did not – Found respondent’s actions those of fair and reasonable employer in taking immediate steps to not offer further work; ending unlawful relationship – Second applicant’s argument that dismissal predetermined rejected – Found dismissal justified – Second applicant’s claim to recover overtime rejected – First applicant claimed dismissal unjustified for failure to perform employment agreement due to work injury – Authority accepted respondent able to invoke dismissal provision in employment agreement where employee disabled or incapacitated for 8 week period – Found first applicant failed to remain reasonably communicative with respondent – Found dismissal justified – UNJUSTIFIED DISADVANTAGE – Authority rejected first applicant’s argument compelled by respondent to work in way contrary to medical certificates – Grouter |
| Result | Applications dismissed (Dismissal)(Disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;Immigration Act 1987 s5(1);Immigration Act 1987 s45 |
| Cases Cited | Otago Hotel IUOW v Donaldson & Youngman (1988) 2 NZELC 95,895 |
| Number of Pages | 10 |
| PDF File Link: | aa 453_09.pdf [pdf 34 KB] |