| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 81/10 |
| Hearing date | 23 Feb 2010 |
| Determination date | 30 March 2010 |
| Member | P Cheyne |
| Representation | A McInally ; D Hudson |
| Location | Dunedin |
| Parties | Gray v Best Removals Otago Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unjustifiably dismissed following disciplinary meeting – Respondent argued applicant resigned voluntarily – Applicant received final written warning for lateness – Warning notified dismissal possible if late again – Applicant late for work - Disciplinary meeting held – Conflict of evidence whether applicant resigned voluntarily – Applicant claimed asked whether being dismissed and respondent’s manager (“H”) confirmed dismissal – H argued applicant resigned – Argued H subsequently accepted applicant’s resignation after received authorisation from respondent – Argued applicant confirmed resignation – Applicant worked for respondent on casual basis - Applicant later raised personal grievance – Authority found applicant knew further late incident would result in dismissal – Found H confirmed what applicant already knew – Found applicant initiated termination by resigning – Found H cautiously not accepted verbal resignation until received approval from respondent – No dismissal - ARREARS OF WAGES – ARREARS OF HOLIDAY PAY – Applicant sought recovery of wages where applicant worked less than 30 hours – Employment agreement (“EA”) provided 30 minimum hours per week – Authority found no evidence respondent breached EA by not providing applicant minimum work hours – Applicant sought recovery of unlawful deduction from final pay – Respondent argued deductions lawful as EA provided applicant pay respondent loss arising from damage to respondent’s property not covered by insurer – Applicant damaged work vehicle – H and another employee (“W”) agreed to repair vehicle – H did not tell applicant liable for costs of W’s labour – Authority found respondent failed to show costs for W’s labour not recoverable from insurer – Found respondent resorted to self-help to avoid inconvenience of dealing with insurance company - Found loss not recoverable from applicant therefore deduction unlawful – Respondent withheld applicant’s holiday pay as applicant allegedly used wrong fuel for work vehicle – Applicant passenger in vehicle – Respondent alleged applicant verbally accepted responsibility for damage – Found vehicle not under applicant’s control at time of incident – Found despite applicant accepting responsibility, no sum quantified and acceptance of liability not in writing – Found statutory requirements not met to lawfully withhold applicant’s holiday pay – Authority ordered respondent to pay applicant holiday pay in full - Applicant claimed compensation for withholding of holiday pay – Claimed suffered distress – Found no jurisdiction to award compensation for arrears claim – Found applicant’s employment not disadvantageously affected by respondent’s breach of statutory duties to entitle applicant to remedies – Respondent claimed applicant wore H’s shirt therefore liable for cost of shirt – Found shirt cost to be treated as holiday pay already received |
| Result | Application granted (Arrears of holiday pay) ; Applications dismissed (Unjustified dismissal)(Arrears of wages) ; Arrears of holiday pay (Quantum to be determined) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Wages Protection Act 1983 s4;Wages Protection Act 1983 s5(1) |
| Cases Cited | Amaltal Fishing Company Ltd v Morunga [2002] 1 ERNZ 692;Auckland etc Shop Employees IUOW v Woolworths (NZ) Ltd [1985] ACJ 963;McClenaghan v Bank of New Zealand [1978] 2 NZLR 528;Wellington Clerical Workers IUOW (re Fray) v Greenwich [1983] ACJ 965 |
| Number of Pages | 9 |
| PDF File Link: | ca 81_10.pdf [pdf 29 KB] |