| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 105/10 |
| Hearing date | 10 Nov 2009 |
| Determination date | 30 April 2010 |
| Member | H Doyle |
| Representation | D Beck ; S Langton |
| Location | Christchurch |
| Parties | James and Ors v New Zealand Vineyard Estates Ltd |
| Other Parties | Jaye-McVea, Galbraith, Papworth |
| Summary | UNJUSTIFIED DISMISSAL - Applicants claimed summarily dismissed from employment - Applicants employed for approximately two weeks - Applicants arrived at respondent’s premises each morning and then directed to undertake particular tasks - Respondent concerned applicants’ performance not up to standard - Respondent considered running short of work and no longer required four employees - Respondent decided due to applicants’ “slightly haphazard” work would not be offered any further work - Applicants informed no more work available - Respondent claimed applicants' casual employees - Applicants claimed employment was fixed term or temporary employment for seasonal period - Employment agreements applicants signed headed “Casual Vineyard Worker” and employment expressed as on irregular as required basis - Authority found applicants’ hours of work not regular - Found applicants able to start or leave later each day as suited them - Found applicants did not work all hours offered to them - Found were some inconsistencies within written employment agreement with casual work, such as one day notice period and abandonment clause - However, found in practice notice period meant advising respondent applicants would not turn up following day - Found when analysed day to day arrangements more consistent with casual arrangement than continuous or permanent employment arrangement - Found all four applicants employed as genuine casual employees - Found as applicants' genuine causal employees not unjustifiably dismissed when informed no more work available - No unjustified dismissal - UNJUSTIFIED DISADVANTAGE - Authority considered whether applicants unjustifiably disadvantaged by decision not to offer them further work based on their performance - Found applicants not told performance was such that at risk of not being offered further work - Found obligations of fair dealing and good faith including obligation to be responsive and communicative required applicants to be advised that performance was such that put them at risk of not being offered further work - Found fair and reasonable employer would in circumstances where new casuals had been hired that same week have advised applicants of reasons why had been selected - Found failure to advise applicants that performance below expected standard and why selected to not to be offered further work unjustified - Unjustified disadvantage - Remedies - No contributory conduct - Found second applicant (AJ"), third applicant (“JG”) and fourth applicant (“SP”) given two days notice therefore not entitled to reimbursement for lost wages - Found first applicant ("NJ") not properly given notice under employment agreement - NJ to be paid one days pay in lieu of notice - NJ claimed hurt by way treated and from previous experience working in vineyards did not consider performance substandard - Claimed respondent made her feel stupid and underappreciated - $800 compensation appropriate - AJ claimed felt treated rudely and without respect - Claimed way advised not being offered further work hurtful - $800 compensation appropriate - JG claimed felt degraded and humiliated because of situation leading to not being offered further work - $800 compensation appropriate - SP claimed stressed by situation and offended by way treated - $800 compensation appropriate - Vineyard workers" |
| Result | Application dismissed (unjustified dismissal) ; Application granted (unjustified disadvantage) ; Pay in lieu of notice (one day)(NJ) ; Compensation for humiliation etc ($800)(NJ) ; Compensation for humiliation etc ($800)(AJ) ; Compensation for humiliation etc ($800)(JG) ; Compensation for humiliation etc ($800)(SP) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s160 |
| Cases Cited | Jinkinson v Oceania Gold (NZ) Ltd [2009] ERNZ 225 |
| Number of Pages | 12 |
| PDF File Link: | ca 105_10.pdf [pdf 48 KB] |