| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 189/10 |
| Hearing date | 12 Apr 2010 - 13 Apr 2010 (2 days) |
| Determination date | 29 September 2010 |
| Member | H Doyle |
| Representation | J Horan ; R Davidson |
| Location | Christchurch |
| Parties | Tan v Wong & Anor |
| Other Parties | Asha Co Ltd |
| Summary | PRACTICE AND PROCEDURE - Identity of employer - Applicant employed at respondents’ restaurant for eight years from 2000 to 2008 - Applicant claimed employed by first respondent - First respondent claimed initially employed applicant then employment transferred to second respondent in 2003 - Authority not satisfied from evidence applicant agreed to change of employer until July 2006 - Found applicant employed by first respondent from December 2000 until July 2006 - Found applicant employed by second respondent from July 2006 until employment relationship ended - Limitation period - Found s142 Employment Relations Act 2000 provided no action can be commenced in Authority in relation to employment relationship problem that was not personal grievance more than six years after date on which cause of action arose - Found action commenced with filing of claim - Found claim against first respondent commenced when statement of problem lodged with Authority in May 2009 - Found no action could be commenced against first respondent for shortfall in payments for work performed or for time and a half for working on public holidays prior to May 2003 - Found claim against second respondent only commenced when joined to proceedings by Authority determination dated May 2010 - Found no action could be commenced against second respondent for shortfall in payments for work performed or for time and a half for working on public holidays prior to May 2004 - Whether claims for alternative days and holiday pay, if upheld, should be treated differently - Found claims for alternative days and holiday pay entitlements did not crystallise until employment ended - Found matters could therefore be assessed from commencement of employment - ARREARS OF WAGES AND HOLIDAY PAY - Applicant claimed during course of employment did not have any paid holidays, not paid time and a half for working on public holidays, did not receive alternative day in lieu for working on public holidays, not paid for alternative days, and worked considerable overtime for which not paid - Found applicant had three employment agreements over course of employment - Found no detailed wage and time records - Found was conflict in evidence as to what applicant paid and hours worked - Authority found for six years from May 2003 applicant worked average of 54 hours per week and that owed money for hours over and above that paid - Found applicant did not take holidays or use alternative days - First respondent to pay applicant $27733 gross being shortfall in payment for hours worked and from 1 April 2004 time and a half for working on public holidays - Second respondent to pay Ms applicant $30656 gross being shortfall in payment for hours worked and time and a half for working on public holidays - Interest awarded - Second respondent to pay applicant $10428 for alternative days for eight years of employment - Second respondent to pay to applicant $18486 holiday pay - Interest awarded - UNJUSTIFIED DISMISSAL - Applicant claimed subjected to verbal threats, discriminated against, and constructively dismissed - Whether personal grievance raised within 90 days - Found applicant raised constructive dismissal personal grievance within time - Found no other personal grievance raised within 90 day period - Authority not satisfied factual basis to support discrimination claim - Applicant claimed first respondent threatened her when requested Christmas day off - First respondent denied making threat and claimed applicant resigned - Authority not satisfied to required standard of proof that threat made - Found therefore not satisfied threat relied on as basis for applicant’s decision to resign - Found applicant resigned - Found applicant actually dismissed during notice period when first respondent asked applicant to leave - Found as no justification advanced for dismissal, dismissal unjustified - Remedies - No contributory conduct - Authority made no award for one week’s salary during notice period as was evidence first applicant gave applicant some cash at end of employment - Found could be no claim for reimbursement of lost wages beyond end of notice period as applicant resigning - Found applicant’s concerns mainly about working conditions and pay - However, found applicant entitled to compensation for undignified way employment relationship ended - $3,000 compensation appropriate - Chef |
| Result | Applications granted ; Arrears of wages ($27,733.37 )(Payable by first respondent) ; Arrears of wages ($30,656.66)(Payable by second respondent) ; Arrears of wages ($10,428) (Alternate days)(Payable by second Respondent) ; Holiday pay $18,486 (Payable by second respondent) ; Interest (4%) ; Compensation for humiliation etc ($3,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s114;ERA s142;ERA Second Schedule cl11;Holidays Act 2003 s24;Holidays Act 2003 s24(2);Holidays Act 2003 s50;Holidays Act 2003 s60(2);Holidays Act 2003 s81;Holidays Act 2003 s83 |
| Cases Cited | Hopper v International Paints Of New Zealand, Limited (No 3) [1948] NZLR 1051;Mehta v Elliott (Labour Inspector) [2003] 1 ERNZ 451;Myatt (Labour Inspector) v Antipodean Growers Ltd unreported, A Dumbleton, 1 Apr 2010, AA 153/10;Tan v Wong & Anor unreported, H Doyle, 14 May 2010, CA 121/10 |
| Number of Pages | 21 |
| PDF File Link: | ca 189_10.pdf [pdf 59 KB] |