| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 37/10 |
| Hearing date | 9 Feb 2010 |
| Determination date | 26 February 2010 |
| Member | P R Stapp |
| Representation | J Gragilla (Applicant in person), S Creed ; D Evans |
| Location | Wellington |
| Parties | Gragilla v The Learning Connexion Ltd and Anor |
| Other Parties | Milne |
| Summary | PRACTICE AND PROCEDURE – Correct identity of employer – Applicant claimed employed by first respondent – Authority found first respondent applicant’s employer - UNJUSTIFIED DISMISSAL – Abandonment – Applicant claimed unjustifiably dismissed - Respondents claimed applicant abandoned employment – Applicant obtained three weeks discretionary leave to go overseas – Applicant’s annual leave ran out - Second respondent made clear required applicant to return on agreed date – Applicant claimed unable to get back to New Zealand (“NZ”) on time due to flights – First respondent doubted genuineness of applicant’s claim but did not investigate matter – Second respondent rejected claim – Applicant dismissed for abandonment - Applicant returned to NZ seven days after leave ended – Authority found absence of abandonment clause in employment agreement (“EA”) did not prevent abandonment being implied into EA – Found fair employer would have invoked disciplinary proceedings if concerned applicant acted deceptively regarding inability to return to work on time – Found allegations applicant absent without authority and misled respondents not put to applicant - Found applicant’s emails indicated intention to return to work – Found fair employer would not have concluded abandonment –Dismissal unjustified – REMEDIES – Found 25 percent contributory conduct as applicant failed to provide details why unable to return to work on time – Reimbursement of 4 weeks lost wages – $2,000 compensation appropriate – COSTS – Applicant self represented |
| Result | Application granted ; Reimbursement of lost wages ($2,940 reduced to $2,205) ; Compensation for humiliation ($2,000 reduced to $1,500) ;Disbursements in favour of applicant ($70)(Filing fee) ; No order for costs |
| Main Category | Personal Grievance |
| Cases Cited | E N Ramsbottom Limited v Chambers [2000] 2 ERNZ 97;Lwin v A Honest International Co Ltd [2003] 1 ERNZ 387;Pitolua v Auckland City Abattoir [1992] 2 ERNZ 97 ; [1992] 1 NZLR 6 |
| Number of Pages | 8 |
| PDF File Link: | wa 37_10.pdf [pdf 35 KB] |