| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 386/10 |
| Hearing date | 5 Aug 2010 |
| Determination date | 26 August 2010 |
| Member | E Robinson |
| Representation | A Singh ; C Bennett |
| Location | Hamilton |
| Parties | Kaye v North Beach Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed by respondent – Respondent argued applicant a casual employee and no unjustified dismissal – Authority found more likely than not respondent did not specifically tell applicant that position casual – Applicant provided respondent with medical certificates after period of illness and subsequent stress following friend’s suicide – Applicant returned to respondent to check roster for shift allocation and told no shifts available as replaced by new employee – Respondent confirmed to applicant that had been replaced and would receive accrued holiday pay – Applicant considered dismissed – Found Employment agreement (“EA”) required applicant to be advised verbally of working hours – Found applicant not advised verbally of hours as hours set out on roster – Applicant claimed provided medical certificates as believed requirement in handbook – Authority found description of casual employment relationship in EA not consistent either with EA or pattern of dealing between parties – Found EA not determinative of real nature of relationship between parties – Found essence of casual work lay in series of engagements complete in themselves, while ongoing employment contemplated continuing pattern of regular work – Found several indicators that applicant’s employment more consistent with continuous or permanent employment than casual employment – Found rostered hours available at least two weeks in advance – Found applicant had regular pattern of working – Found mutual expectation of continuity of employment – Authority noted for casual employees impracticable for employer to provide them with 4 weeks annual holidays – Found applicant permanent part time employee – Found no procedurally fair disciplinary process followed – Found respondent mistakenly but genuinely believed applicant a casual employee, however, required to have procedural and substantive justification for dismissal decision – Found respondent had no grounds for assuming applicant would be unreliable on return to health and to workplace – Found no substantive justification for dismissal – Dismissal unjustified – Remedies – No contributory conduct – Found applicant entitled to $3,375 reimbursement of lost wages – Found while loss of employment distressing to applicant, two preceding events substantial contributors to subsequent depressive illness – Found $2,000 compensation appropriate – Sales Assistant |
| Result | Application granted ; Reimbursement of lost wages ($3,375.00) ; Interest ($176.85) ; Compensation for humiliation etc ($2,000.00) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s6;ERA s6(3);ERA s103A;ERA s124;Holidays Act 2003 s28;Holidays Act 2003 s28(1)(ii) |
| Cases Cited | Bank of Montreal v United Steelworkers of America 87 CLLC 16,044 (QLRB);Jinkinson v Oceania Gold (NZ) Ltd [2010] NZEMPC 102;NZ (with exceptions) Food Processing etc IUOW v Unilever NZ Ltd [1990] 1 NZILR 35 ; (1990) 3 NZELC 97,567 ; (1990) ERNZ Sel Cas 582 |
| Number of Pages | 12 |
| PDF File Link: | aa 386_10.pdf [pdf 37 KB] |