| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 296/10 |
| Hearing date | 3 Mar 2010 |
| Determination date | 23 June 2010 |
| Member | V Campbell |
| Representation | R Alchin ; R Clark |
| Location | Hamilton |
| Parties | Holmes v New Zealand Industrial Abseilers Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed suffered disadvantage in employment as result of two warnings and by unauthorised deductions from final pay – Staff warned if did not adhere to keeping kit bags clean and tidy, written warnings would be issued – Authority found no process followed in issuing warnings – Found warnings unjustified – UNJUSITIFIED DISMISSAL – Applicant claimed nature of employment relationship not casual – Found employment agreement indicated intention of casual employment – Found other clauses indicated employment ongoing – Found obligations set out in employment agreement inconsistent with casual employment – Found applicant offered and accepted casual employment arrangement but arrangement altered during employment and became ongoing – Applicant given two weeks notice services no longer required – Respondent claimed terminated employment because no longer required applicant to be available for work – Found applicant dismissed for variety of reasons and carried out dismissal in absence of procedural fairness – Dismissal unjustified – REMEDIES – 100 percent contributory conduct in relation to unjustified disadvantage – No remedies awarded – No contributory conduct in relation to unjustified dismissal – Found applicant failed to provide evidence of lost wages following dismissal – Found no reimbursement of lost wages – $5,000 compensation appropriate – ARREARS OF WAGES AND HOLIDAY PAY – Respondent made deduction from applicant’s wages for communications radio applicant broke – Found employment agreement allowed for deductions – Found deduction lawful – Applicant sought to recover one week’s annual leave wrongly used for first week of ACC related injury – Applicant claimed requested to be paid sick leave instead of annual leave as previously arranged – Found applicant entitled to reimbursement for one week’s annual leave – Respondent made deductions from applicant’s final pay for training courses – Job description and house rules provided for deductions for training courses if employees leave employment within 12 months of completing course – Applicant did not receive copies of job description or house rules – Found no consent to deductions – Arrears of wages and holiday pay due and owing – Found applicant to repay money overpaid into account |
| Result | Application dismissed (unjustified disadvantage) ; Application granted (unjustified dismissal) (arrears of wages and holiday pay) ; Compensation for humiliation etc ($5,000) ; Arrears of wages and holiday pay ($1,925) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s6;ERA s103A;Holidays Act 2003 s38 |
| Cases Cited | Alliance Freezing Co (Southland) NZ v NZ Amalgamated Engineering etc IUOW [1991] NZLR 533;Bilkey v Imagepac Partners unreported, Colgan J, 7 Oct 2002, AC 65/02;Clegg v NZ Sugar Company Limited unreported, Colgan J, 19 Oct 1998, AC 83/98;Jinkinson v Oceana Gold (NZ) Ltd [2009] ERNZ 225;Mason v Health Waikato [1998] ERNZ 84;McCosh v National Bank unreported, Colgan J, 13 Sept 2004, AC 49/04;NZ Storeworkers IUW v South Pacific Tyres (NZ) Ltd [1990] 3 NZILR 452 |
| Number of Pages | 13 |
| PDF File Link: | aa 296_10.pdf [pdf 53 KB] |