| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 128/10 |
| Hearing date | 24 Feb 2010 - 2 Mar 2010 (2 days) |
| Determination date | 31 May 2010 |
| Member | H Doyle |
| Representation | M Shahadat ; R Thompson |
| Location | Christchurch |
| Parties | Firoz v Last Train to India Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Applicant claimed unjustifiably dismissed - Respondent claimed applicant not dismissed rather advised had obtained another position - Applicant spoke limited English and Hindi interpreter used at investigation meeting - Applicant recruited from India to work at respondent - Respondent arranged work permit - Parties had unsigned written employment agreement - Applicant required to work 48 hours per week - Respondent began renewal of work permit process - Respondent claimed applicant’s performance and behaviour deteriorated from that point - Claimed gave applicant three warnings - Applicant denied receiving warnings - Authority found applicant not issued with written warnings but issues of concern were discussed - Respondent claimed applicant advised had another position and would be leaving - Applicant denied said was leaving - Respondent advised Immigration applicant did not want to stay in respondent’s employ, had concerns about applicant’s performance, and wished to withdraw job offer - When Immigration contacted applicant indicated wished to stay in employment - Applicant advised by Immigration that respondent withdrawing offer of position - Applicant took three days sick leave then returned to work - Respondent arranged plane ticket to India for applicant and advised should return to India as visa application expired and applicant effectively overstayer - Applicant’s attempts to discuss issues with respondent unsuccessful - Authority found no evidence to support applicant resigned or abandoned employment - Found applicant dismissed when offer of work withdrawn - Found fair and reasonable employer would have discussed work permit situation with applicant, confirmed whether applicant wanted to stay, and discussed performance concerns - Found purchase of ticket to India inconsistent with belief applicant had another position - Found respondent’s actions not those of fair and reasonable employer - Dismissal unjustified - Remedies - No contributory conduct - Applicant obtained new employment and did not seek reimbursement of lost wages - Authority found applicant had high level of confusion, hurt and concern, but fortunately only for short period - $5,000 compensation appropriate - ARREARS OF WAGES - Applicant claimed owed for working in excess of 48 per week - Applicant also claimed not able to take breaks during day - Respondent denied claims - Authority satisfied applicant did not have to work more than 48 hours per week - Found applicant able to take breaks - However, found when minimum wage increased applicant’s wage did not - Found applicant received less than minimum wage for period of 22 weeks - Respondent to pay applicant $572 being reimbursement for wages paid below minimum wage rate - Authority found parties entered into second employment agreement that had higher wage rate than first employment agreement - Found applicant not paid at that wage rate - Authority calculated applicant owed $1,686 gross reimbursement of wages underpaid - ARREARS OF HOLIDAY PAY - Applicant claimed worked on eight statutory holidays and not paid time and a half - Authority found four of those days applicant either did not work or day was applicant’s usual day off - Found applicant not paid at time and a half for two days - Respondent to pay applicant for statutory days worked but not paid at time and a half - Found applicant entitled to alternative days for four statutory holidays - Respondent to pay applicant for alternative days for statutory holidays worked - Respondent accepted applicant owed holiday pay - Authority advised parties to consider cash value of board and lodgings when determining holiday pay outstanding - Leave reserved to return to Authority if parties unable to agree on holiday pay owed - Chef |
| Result | Applications granted ; Compensation for humiliation etc ($5,000) ; Arrears of wages ($2,258) ; Holiday pay ($621.81) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s103A;Holidays Act 2003 s14;Holidays Act 2003 s23;Holidays Act 2003 s81;Minimum Wage Act 1983 s4;Minimum Wage Act 1983 s7;Minimum Wage Order 2007 |
| Number of Pages | 18 |
| PDF File Link: | ca 128_10.pdf [pdf 55 KB] |