| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 380/10 |
| Hearing date | 23 Jul 2010 |
| Determination date | 23 August 2010 |
| Member | R Larmer |
| Representation | J Weber (in person) ; J Wang (in person) |
| Location | Auckland |
| Parties | Weber v Wang |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Applicant claimed employment relationship with respondent – Respondent argued company (“ACE”) applicant’s employer at all material times – Argued had no responsibility for either of ACE’s car yards where applicant claimed place of work - Authority found ACE not registered company – Found ACE’s website did not distinguish between car yards – Found during investigation meeting respondent declined opportunity to join ACE as respondent – Found respondent understood would be personally liable if dismissal found unjustified – Found nothing to indicate respondent did not consider themselves to be applicant’s employer in communications with Authority – Found respondent’s subsequent communications confirmed themselves to be correct respondent – Found probable respondent applicant’s employer – Found probable applicant employed to carry out employment duties at both car yards – Found no evidence respondent acted as agent rather than acted in personal capacity – Found even if respondent agent, nothing to draw that agency relationship to applicant’s attention during employment relationship – Found doctrine of undisclosed principal would apply to entitle applicant to pursue grievance against respondent – Respondent applicant’s employer - UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustified summary dismissal – Respondent argued dismissal during 90 day trial period due to poor performance – Applicant received text terminating employment relationship with respondent – Applicant took proactive steps to clarify whether dismissal applied to work in both car yards – Applicant contacted other car yard manager (“Z”) enquiring whether dismissed – Z offered applicant two weeks employment – Applicant’s attempts at contacting respondent unsuccessful – Personal grievance raised – Authority found applicant not precluded by s67B(2) Employment Relations Act 2000 from pursuing grievance as trial period not recorded in written employment agreement (“EA”) - Found probable respondent dismissed applicant from both yards – Found Z would not have offered further employment if applicant not already dismissed - Found respondent dismissed applicant’s efforts for re-employment – Found respondent did not raise poor performance during employment relationship – Found parties discussed punctuality but no evidence specific start time agreed to – Found respondent did not give applicant instructions on performance of duties therefore could not rely on poor performance – Found respondent did not take any steps to investigate applicant’s alleged absences from work – Found applicant’s alleged conduct did not constitute serious misconduct – Found allegations could not justify first written warning, much less summary dismissal – Found complete absence of procedural fairness – Dismissal unjustified - REMEDIES – No contributory conduct – Found reimbursement of $5,547 12 weeks lost wages appropriate as applicant sought to mitigate loss - $3,500 compensation appropriate - ARREARS OF HOLIDAY PAY – Applicant sought $303 arrears of holiday pay – Respondent argued no responsibility for arrears – Authority found as employer, respondent responsible for ensuring holiday pay entitlements received – Respondent ordered to pay applicant $303 – COSTS – No order for costs as parties self represented – Car groomer |
| Result | Application granted ; Arrears of holiday pay ($303) ; Reimbursement of lost wages ($5,547.30) ; Compensation for humiliation etc ($3,500) ; No order for costs ; Disbursements in favour of applicant ($70)(Filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s65;ERA s67A;ERA s67B(2);ERA s103A;ERA s124;ERA s128(2) |
| Number of Pages | 18 |
| PDF File Link: | aa 380_10.pdf [pdf 52 KB] |