| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 157/10 |
| Hearing date | 22 Feb 2010 - 19 May 2010 (2 days) |
| Determination date | 06 August 2010 |
| Member | J Crichton |
| Representation | A McKenzie ; P McBride |
| Location | Christchurch |
| Parties | Tropotova and Anor v OCS Ltd |
| Other Parties | Tropotova |
| Summary | PRACTICE AND PROCEDURE – Whether applicants casual employees – Applicants claimed not casual employees as had legitimate expectations of further work – Respondent argued casual employees – Authority found key issue whether obligations subsisted between parties to employment relationship even during periods when work not actually performed – Found if obligations existed, would tend to indicate continuing employment relationship – Found applicants worked on roster prepared in advance – Found although work hours fluctuated, there existed regular work pattern with regular start and finish times – Found applicants not causal employees - UNJUSTIFIED DISMISSAL – Dismissal – Applicants claimed “sending away” and issuance of trespass notice constituted unjustified dismissal – Respondent argued unaware trespass notice issued and no dismissal took place – Respondent held disciplinary meeting to discuss poor performance allegation against second applicant – Meeting ended after first applicant allegedly assaulted respondent – Applicants escorted out of workplace premises – Applicants obtained information from co-worker that employment relationship had been terminated - Respondent later contacted second applicant to confirm address as “some documents” were being sent – Applicants served with trespass notice by Canterbury District Health Board (“CDHB”) - Respondent did not contact applicants thereafter – Applicants did not return to workplace – Personal grievance raised – Authority found trespass notice provided applicants prohibited from attending at any premises occupied by CDHB for unlimited time – Found second applicant visited CDHB’s security office to find out what notice meant as English second language – Found second applicant concluded could not engage in face-to-face discussion with respondent – Found respondent knew or ought to have known trespass notice had been issued as respondent’s manager contacted second applicant to confirm address – Found in any event, inconceivable respondent did not know of notice when respondent knew CDHB’s policy regarding trespass – Found unreasonable for applicants to rely on third party information to conclude dismissal – Found applicants not “sent away” – Found applicants escorted off premises due to their conduct therefore no dismissal took place at that point – Found trespass notice made it practically difficult for applicants to engage with respondent – Found respondent had onus to re-establish contact however onus not discharged – Found trespass notice ended employment relationship constituting actual dismissal – Found applicants unjustifiably dismissed – REMEDIES – Authority found three forms of contributory conduct by applicants – First, applicants’ first representative failed in bringing proceedings to Authority but unfair for respondent to bear brunt of such deficiencies – Second, found first applicant assaulted and made as if to spit in respondent’s direction – Third, found applicants failed to engage with respondent by telephone after meeting and inappropriately relied on third party information – Found 75 percent contribution by first respondent and 50 percent contribution by second respondent – $2,000 compensation for first applicant and $4,000 compensation appropriate for second applicant – Reimbursement of $1,000 lost wages for first applicant and $1,500 for second applicant – Authority directed parties to engage with each other to resolve arrears of wages claim – Applicants directed to return respondent’s property to their representative – Cleaners |
| Result | Applications granted ; Reimbursement of lost wages ($1,000 after reduction)(First applicant)($1,500 after reduction)(Second respondent) ; Compensation for humiliation etc ($2,000 after reduction)(First applicant)($4,000 after reduction)(Second applicant) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Trepass Act 1980 |
| Cases Cited | Jinkinson v Oceania Gold (NZ) Ltd [2009] ERNZ 225;Wellington Clerical IUW v Greenwich (1983) ERNZ Sel Cas 95 |
| Number of Pages | 14 |
| PDF File Link: | ca 157_10.pdf [pdf 47 KB] |