| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 469/10 |
| Hearing date | 12 Aug 2010 |
| Determination date | 02 November 2010 |
| Member | A Dumbleton |
| Representation | M Smyth ; T French |
| Location | Auckland |
| Parties | Watson v Restaurant Holding Ltd |
| Summary | ARREARS OF WAGES – UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed following statutory and contractual breaches of terms of employment by respondent was forced to resign – Delayed start to applicant’s employment – Applicant resigned from previous employer relying on respondent’s contractual promise – Authority found respondent’s failure to comply with employment agreement (“EA”) meant applicant had no income and needed financial assistance benefit – Subsequently applicant provided part time work at another caf� run by respondent - However, part time work for less hours than promised in EA – Authority rejected respondent’s argument applicant had agreed to be flexible about start date – Found respondent failed to comply with express term of EA – Found applicant entitled to recover difference of what would have been paid, if EA complied with, and what actually paid – Applicant required to account for benefit received – Found further breach when, without consultation, respondent reduced applicant’s hours of work – Respondent ordered to pay arrears of wages owing to applicant – Applicant claimed not being permitted to take 10 minute rest breaks caused resignation – Found agreed breaks not to be strictly applied but subject to what was reasonable and practicable in circumstances of workplace – Found respondent did not act without justification and no disadvantage suffered by applicant – Found no unjustified disadvantage – Found constructive dismissal grievance raised prematurely – Found respondent did not appear to act in way to coerce resignation from applicant – Found nothing occurred in relation to rest break issue amounting to breach of such seriousness as to amount to constructive dismissal – Found circumstances fell well short of amounting to constructive dismissal – Found likely to some extent contrast of temperaments and personalities led to applicant’s resignation – Found no constructive dismissal – Waitress/Caf� Manager |
| Result | Application granted (Arrears of wages) ; Applications dismissed (Disadvantage)(Constructive dismissal) ; Arrears of wages ($5,120.00) ; Interest (4.5 percent) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;Employment Relations (Breaks, Infant feeding, and other matters) Amendment Act 2008 s69ZD |
| Cases Cited | Auckland Power Board v Auckland Local Authorities IUOW [1994] 1 ERNZ 168;NZ Woollen Workers IUOW v Distinctive Knitwear NZ Ltd [1990] 2 NZILR 438 |
| Number of Pages | 8 |
| PDF File Link: | aa 469_10.pdf [pdf 25 KB] |