| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 327/10 |
| Hearing date | 25 Jun 2010 |
| Determination date | 20 July 2010 |
| Member | R A Monaghan |
| Representation | A Vujnovich ; E Kuo |
| Location | Auckland |
| Parties | Lee v Yoon and Anor |
| Other Parties | Kim |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed following altercation with first respondent – Respondents argued applicant terminated employment relationship on own initiative – Applicant experienced difficulties with immigration matters to the knowledge of respondents – Applicant received numerous phone calls from husband and another person (“X”) at workplace – First respondent enquired why X calling and requested applicant not to bring personal matters to workplace – Altercation occurred – Conflict of evidence whether applicant threatened to terminate employment relationship if respondents did not give share of business for “free” – Conflict of evidence whether applicant threatened to open competing company with X – First respondent advised lost trust and confidence in applicant but gave applicant choice to continue working until replacement found – Applicant claimed dismissed and left workplace – One month later, first respondent sent applicant letter offering return to employment – Applicant claimed did not receive letter and would have declined offer in any event – Applicant and X subsequently set up competing business – Respondents’ evidence preferred - Authority found applicant left workplace after altercation concerning whether applicant could obtain share in respondents’ business – Found applicant made threat would open competing business with X – Found first respondent’s reaction had lost trust and confidence in applicant reasonable – Found applicant’s conduct repudiated employment relationship however, accepted conduct driven by fears about immigration status – Found applicant’s claim altercation caused by misunderstanding unpersuasive when applicant actively pursued business interest with X afterwards – Found no dismissal – ARREARS OF WAGES – ARREARS OF HOLIDAY PAY – RECOVERY OF MONIES - Applicant sought arrears of wages for working overtime – Authority found no evidence to support claim worked 30-60 minutes overtime every day – Applicant sought arrears of wages for working Sundays pursuant to employment agreement (“EA”) – Found applicant required to work Sundays pursuant to EA – Found $1,860 arrears of wages due and owing – Applicant sought pay for day in lieu for working statutory holidays – Found $1,920 arrears of wages due and owing – Applicant sought arrears of holiday pay – Found $1,959 holiday pay due and owing – Found $648 to be deducted from total amount owed to applicant due to overpayment of wages - Interest payable – Authority declined request for order for payment by instalment, however, reserved leave to make application – Retail/Salesperson |
| Result | Application granted (Arrears of wages)(Arrears of holiday pay)(Recovery of monies) ; Application dismissed (Unjustified dismissal) ; Arrears of wages ($1,860) ($1,920)(Pay for day in lieu) ; Arrears of holiday pay ($1,959.36) ; Interest (3.25%) ; Recovery of monies ($648)(Overpayment of wages) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s131(1A);Holidays Act 2003 s16;Holidays Act 2003 s21(2);Minimum Wages Act 1983 s11B(2) |
| Number of Pages | 11 |
| PDF File Link: | aa 327_10.pdf [pdf 35 KB] |