| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 167/10 |
| Hearing date | 13 Oct 2010 |
| Determination date | 19 October 2010 |
| Member | D Asher |
| Representation | J Richardson ; V Ranchhod (in person) |
| Location | Wellington |
| Parties | Kumar v Ranchhod t/a Maharaja's Indian Restaurant |
| Summary | UNJUSTIFIED DISMISSAL – ARREARS OF WAGES – Applicant claimed respondent’s failure to pay outstanding wages and holiday pay resulted in constructive dismissal – Respondent conceded wages and holiday pay owing to applicant, however, parties disputed amount owing – Respondent conceded unable to provide applicant with hours stated in employment agreement – Applicant sought to recover payment of contracted hours less hours actually worked – Respondent conceded no wage or time records kept in respect of applicant’s employment – Respondent stated willing to pay monies owing by $1000 monthly instalments – Applicant acknowledged received $500 payment from respondent which was to be deducted from claim – Authority found amount of debt disputed by respondent but unable to provide wage and time records with which to contradict claim – Found unpaid wages and holiday pay owing – Found applicant unjustifiably constructively dismissed – Found applicant entitled to two months reimbursement of lost wages – No claim for compensation for hurt and humiliation – Found respondent’s failure to meet obligations broad, longstanding, and sustained – Found 5 percent interest appropriate – PENALTY – Found respondent’s breaches not technical or inadvertent, but clearly deliberate and sustained – Found $1,000 penalty appropriate payable to applicant – Respondent warned of consequences of failure to comply with Authority’s orders – COSTS – Respondent ordered to pay applicant $1,000 contribution to costs – Chef |
| Result | Applications granted (Dismissal)(Arrears of wages) ; Reimbursement of lost wages ($4,400) ; Arrears of wages ($34,902.96) ; Arrears of holiday pay ($3,933.16) ; Penalty ($1,000)(Payable to applicant) ; Costs ($1,500) |
| Main Category | Personal Grievance |
| Statutes | ERA s159(1)(b)(i);ERA s138(4A);ERA s133;ERA s134;ERA s135;ERA s136;ERA s136(2) |
| Cases Cited | Fuel Espresso Ltd v Hsieh [2007] 2 NZLR 651 ; [2007] ERNZ 60;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] 1 ERNZ 808;Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 8 |
| PDF File Link: | wa 167_10.pdf [pdf 27 KB] |