| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 158/10 |
| Hearing date | 3 Aug 2010 |
| Determination date | 01 October 2010 |
| Member | P R Stapp |
| Representation | S Martin ; B Li, L Qiu |
| Location | Wellington |
| Parties | Yu v Symbol Spreading Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Applicant claimed unjustifiably dismissed - Applicant commenced three month unpaid training period with respondent - Applicant then given individual employment agreement and began paid employment - Applicant claimed left work sick - Claimed sickness related to respondent’s failure to provide letter to Immigration New Zealand in support of applicant’s permanent residence application, and after being requested by respondent’s managing director (“L”), as a condition of support for application, to sign “Employer Satisfaction Guarantee” - Applicant obtained medical certificate - Applicant then received letter from L claiming applicant had walked off job - Authority found applicant unable to produce any independent evidence of any demand by L to sign “Employer Satisfaction Guarantee” in return for support with permanent residence application - Found respondent presented “Employer Satisfaction Guarantee” genuinely to applicant because of concerns about lateness and performance - Found likely respondent gave “Employer Satisfaction Guarantee” to applicant before applicant’s request for letter in support of application - Respondent’s evidence preferred - Found applicant walked out of employment - Found not at initiative of respondent - Found no breach of trust and confidence serious enough to make resignation foreseeable - Found no actual or constructive dismissal - ARREARS OF WAGES AND HOLIDAY PAY - Applicant claimed owed wages for unpaid training period - Authority found not enough proof that real nature of relationship was one of employment during training period - Claim dismissed - Found respondent withheld applicant’s last pay and holiday pay - Found applicant forfeited one weeks pay under employment agreement for leaving without notice - Found applicant entitled to remainder of last pay - Respondent to pay applicant three weeks pay - Respondent to pay applicant outstanding holiday pay - PENALTY - Applicant sought penalty for breach of employment agreement for respondent’s alleged failure to follow procedure for dealing with employment relationship problems - Found given Authority’s factual findings and where parties had different versions of events penalty not appropriate - Applicant claimed respondent’s actions misleading and deceptive when took advantage of applicant’s immigration status and asked applicant to sign “Employer Satisfaction Guarantee” - Found no evidence applicant’s immigration status used for any advantage by respondent - Found “Employer Satisfaction Guarantee” prepared to address applicant’s lateness and performance - Penalty declined - Applicant claimed respondent breached duty of good faith - Authority found whilst respondent’s actions not good practice did not act in bad faith - Penalty declined - Found respondent’s failure to pay wages and holiday pay deliberate act - Found no provision in employment agreement to offset wages or holiday pay for any other money owed - $500 penalty appropriate - COUNTERCLAIM - Respondent claimed owed three months salary for training costs under employment agreement as applicant failed to work for 18 months - Found claim amounted to premium for employment which was unlawful under s12A(1) Wages Protection Act 1983 - Counterclaim dismissed - Newspaper advertisement and set type/web designer |
| Result | Applications dismissed (Unjustified dismissal)(Arrears of wages for training period)(Penalty – breach of good faith and breach of employment agreement) ; Applications granted (Arrears of wages and holiday pay)(Penalty – breach of employment agreement) ; Arrears of wages ($1,664) ; Holiday pay ($1,256.32) ; Penalty ($500)(Payable to Crown) ; Counterclaim dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Wages Protection Act 1983 s12A(1) |
| Number of Pages | 14 |
| PDF File Link: | wa 158_10.pdf [pdf 40 KB] |