| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 3/10 |
| Hearing date | 19 Nov 2009 |
| Determination date | 13 January 2010 |
| Member | P Cheyne |
| Representation | J Beck, J Rolfe ; J Sanders |
| Location | Dunedin |
| Parties | Morgan v Thru Now Ltd t/a Lone Star Cafe and Bar |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant developed dermatitis on hands as result of work – Gloves not always available which exacerbated problem – Applicant allowed to finish early because of irritation – Respondent argued this placed pressure on other staff – Respondent did not raise concern with applicant – Applicant given ultimatum to enter new employment agreement – Contract never concluded and applicant continued to be employed on casual basis – Respondent claimed chef tried to contact applicant about whether able to work as had finished early previous night due to dermatitis – Respondent claimed chef unable to contact applicant so removed from roster for next three days – Applicant reported for work and allowed to work even though replacement worker had been organised – Applicant told not required to work rest of week – Authority found applicant offered and accepted work on rostered days – Found no evidence unfit for work – Found respondent breached agreement to employ applicant when removed from roster – Found sufficient to establish unjustified disadvantage – UNJUSTIFIED DISMISSAL – Applicant’s pattern of work did not reflect casual employment – Found real nature of employment relationship permanent part time even though new employment contract not signed – Found applicant removed from roster based on ultimatum – Respondent argued applicant already knew no further casual work so reasons for removal from roster did not need to be communicated – Found respondent’s decision to remove applicant from roster was dismissal – Dismissal unjustified – REMEDIES – No contributory conduct – Applicant attempted to contact respondent about new contract but unable to do so and issued with ultimatum – Applicant sought reimbursement for 13 weeks lost wages – Found unfit for work for majority of period – Applicant sought $4,000 compensation – Found little evidence of effects on applicant – Found applicant affronted by respondent’s claim dermatitis reason for removal from roster – $1,500 compensation appropriate – Kitchen hand |
| Result | Application granted ; Reimbursement of lost wages (2.4 weeks) ; Compensation for humiliation etc ($1,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;Holidays Act 2003 |
| Cases Cited | Jinkinson v Oceana Gold (NZ) Ltd (2009) 9 NZELC 93 |
| Number of Pages | 11 |
| PDF File Link: | ca 3_10.pdf [pdf 39 KB] |