| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 171/09 |
| Hearing date | 19 Feb 2009 |
| Determination date | 29 May 2009 |
| Member | V Campbell |
| Representation | A Hope ; B Samujh |
| Location | Hamilton |
| Parties | Gillies v Singh t/a Waingaro Hot Springs Pool Complex |
| Other Parties | Singh |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent – Applicant lived in caravan on respondent’s property – Altercation between applicant and friends, and respondent – Applicant subsequently escorted off property by Police – Applicant claimed unjustifiably disadvantaged by respondent failing to provide written employment agreement (“EA”) and work – Also claimed unjustifiably disadvantaged when evicted from property, not given reasonable notice of termination, and termination without due process – Authority found no EA – However, applicant aware of employment terms – Found applicant aware only being paid for actual hours worked – Found no disadvantageous consequences to applicant by not having written EA – Found respondent could not explain why did not approach applicant to ascertain why had not attended work – Found as applicant chose not to be available for work not disadvantaged by respondents – Found no remedies to be awarded as both parties breached good faith obligations – No unjustified disadvantage – UNJUSTIFIED DISMISSAL – Applicant claimed told to leave property and caravan was sold – Alternatively claimed constructively dismissed by respondent altering work hours – Respondent denied telling applicant to leave but conceded caravan sold and alternative accommodation would be found – Authority considered applicant’s previous conduct and general attitude to work – Also considered respondent’s normal response when applicant chose not to work – Found on balance of probabilities likely respondent did not tell applicant to leave property – Found no actual dismissal – Found no constructive dismissal – PENALTY – Authority found penalty claim outside 12 month limitation period – COUNTERCLAIM – Authority declined to address matter as not raised appropriately – Groundsman/Pool attendant |
| Result | Applications dismissed (Disadvantage) (Dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(b) |
| Cases Cited | Mason v Health Waikato [1998] 1 ERNZ 84;McCosh v National Bank, unreported, Colgan J, 13 Sep 2004, AC 49/04;NZ Storeworkers IUW v South Pacific Tyres (NZ) Ltd [1990] 3 NZILR 452;Bilkey v Imagepac Partners unreported, Colgan J, 7 Oct 2002, AC 65/02;Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372;Malik v Bank of Credit and Commerce International SA (in liq) [1998] AC 20 ; [1997] 2 All ER 1;Auckland Electric Power Board v Auckland Provision District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 |
| Number of Pages | 12 |
| PDF File Link: | aa 171_09.pdf [pdf 37 KB] |