| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 414/10 |
| Hearing date | 9 Aug 2010 |
| Determination date | 16 September 2010 |
| Member | E Robinson |
| Representation | L MacDonald ; V Zjajic |
| Location | Auckland |
| Parties | MacDonald v Belgrade Holding Company Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed employed by respondent at respondent’s franchise’s “F store” and subsequently “B store” when unjustifiably dismissed by respondent – Respondent argued applicant’s employment at F store justifiably terminated by redundancy and subsequently employed as independent contractor at B store – Respondent argued contract at B store terminated but as applicant not employee no unjustifiable dismissal – Applicant offered and accepted employment at B store following sale of F store – Authority found description of employment relationship as “casual” as stated on employment agreement (“EA”) not consistent either with provisions in EA or pattern of dealing between parties – Authority noted essence of casual work lay in series of engagements complete in themselves while ongoing employment contemplated continuing pattern of regular and continuous work – Found applicant permanent part-time employee at F store – Found sale of F store for genuine commercial reasons – Found applicant’s employment at F store terminated on basis of genuine redundancy – Found method of communication of redundancy did not comply with s4(1A) Employment Relations Act 2000 – Found no evidence consultation process undertaken with applicant – Found respondent breached terms of EA by providing applicant 2 weeks notice instead of 4 weeks – Found dismissal from F store unjustified – Found EA and pay records not conclusive as to real nature of applicant’s employment at B store – Found more credible applicant carried out similar duties to those performed at F store – Found applicant subject to control by respondent of duties – Found applicant permanent part-time employee during period of employment with B store – Found applicant’s dismissal from B store unjustified – REMEDIES – Found applicant had not raised personal grievance in connection with termination of employment from F store – No compensation awarded – Found applicant entitled to payment for portion of notice period not paid in connection with dismissal from F store – Found applicant entitled to 3 months reimbursement of lost wages in connection with dismissal from B store – Authority considered summary nature of dismissal, location of dismissal, and impact of dismissal upon young person in awarding $2,500 compensation – Contributory conduct – Respondent argued became aware of inappropriate photo concerning applicant approximately one month after F store closed and after applicant commenced work at B store – Authority accepted photograph influenced respondent’s decision to dismiss applicant – Authority ordered 40 percent reduction of figures awarded in respect of B store employment – Pizza store worker |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s4(1A)(i);ERA s4(1A)(ii);ERA s6;ERA s103A;ERA s103(1)(a);ERA s103(1)(b);ERA s124 |
| Cases Cited | Aoraki Corporation Ltd v McGavin [1998] 1 ERNZ 601;Bryson v Three Foot Six Ltd and Ors [2005] ERNZ 372 ; [2005] 3 NZLR 721;Cammish v Parliamentary Service [1996] 1 ERNZ 404;Jinkinson v Oceania Gold (NZ) Ltd [2009] ERNZ 225;G N Hale & Son Ltd v Wellington Caretakers IUOW [1991] 1 NZLR 151;Simpsons Farms v Aberhart [2006] ERNZ 825 |
| Number of Pages | 17 |
| PDF File Link: | aa 414_10.pdf [pdf 49 KB] |