| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 83/10 |
| Determination date | 30 April 2010 |
| Member | D Asher |
| Representation | F Mackay ; S Burlace |
| Location | Wellington |
| Parties | Pryce v Wanganui Realties Ltd t/a Ray White Realty |
| Summary | UNJUSTIFIED DISADVANTAGE – Altercation occurred between applicant and employee (“X”) – X verbally abused applicant – Applicant made complaint to respondent however respondent would not apologise for incident – Applicant claimed respondent’s conduct caused disadvantage – Personal grievance raised two years later – Authority found based on respondent’s admission, X verbally abused applicant and respondent refused to apologise for X’s conduct – Found respondent’s admission amounted to consent for applicant to raise grievance out of time – Found use of obscene language and physical intimidation caused unjustifiable disadvantage - Parties entered into negotiations to change terms and conditions of applicant’s employment agreement (“EA”) – Claimed respondent’s failure to pay applicant in line with other employees caused disadvantage – Found respondent’s refusal to agree to new EA terms with applicant did not cause disadvantage - Claimed respondent failed to make KiwiSaver deductions as requested – Found KiwiSaver a statutory entitlement and respondent’s failure to act frustrated applicant’s legitimate expectation and caused possible financial disadvantage – Claimed respondent delayed meeting applicant to discuss employment relationship problems – Found in absence of clear evidence, no disadvantage - UNJUSTIFIED DISMISSAL – Respondent advised applicant business sold to X and X wanted applicant to leave employment – Advised applicant’s performance poor - Applicant left employment - Respondent did not subsequently tell applicant sale would be company shares not company therefore respondent remained employer – Authority found fair and reasonable employer would have raised performance concerns rather than dismissal – Found fair employer would have told applicant sale changed to shares and invited applicant to return – Found no effort made to deal with applicant’s performance – Dismissal unjustified – REMEDIES – No contributory conduct – Awarded six months lost wages in light of applicant attempting to mitigate loss – $13,000 global compensation – No jurisdiction to direct respondent to provide applicant certificate of service - PENALTY – Applicant sought penalty for breach of EA and good faith – However no written EA agreed to between parties - Authority declined penalty – Found in any event, claimed breaches not particularised – Penalty declined |
| Result | Applications granted (Unjustified disadvantage)(Unjustified dismissal) ; Application dismissed (Penalty) ; Lost remuneration (Quantum to be determined)(Leave reserved) ; Compensation for humiliation etc ($13,000)(Global) ; Penalty declined ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s65;ERA s65(2)(b);ERA s103A;ERA s128(2);ERA s242(2) |
| Cases Cited | Air New Zealand v V (2009) 9 NZELC 93,209;Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 13 |
| PDF File Link: | wa 83_10.pdf [pdf 37 KB] |