| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 473/10 |
| Hearing date | 8 Nov 2010 |
| Determination date | 08 November 2010 |
| Member | R Arthur |
| Representation | M Nutsford ; no appearance |
| Location | Auckland |
| Parties | Smith v Barnes t/a Long John Silver Whangaparaoa |
| Summary | PRACTICE AND PROCEDURE - No appearance for respondent - Identity of employer - Applicant identified respondent as employer in personal capacity trading as Long John Silver Whangaparoa - Authority found in different matter involving respondent employer identified as company (“M”) - Found M listed as payer of wages directly deposited into applicant’s bank account - Found applicant had no written employment agreement - Authority accepted applicant’s evidence M never identified to her as employer - Found in those circumstances even if respondent acting on behalf of M in employing applicant, applicant entitled to proceed against respondent personally under doctrine of undisclosed principal - UNJUSTIFIED DISMISSAL - Applicant attended work for rostered hours on Boxing Day - Respondent’s wife (“W”) asked if applicant could work beyond rostered hours - Applicant advised could work only one hour extra as had friend visiting - W telephoned respondent who asked to speak to applicant - Applicant apologised for not being able to work extra hours and explained had other commitments - Applicant claimed respondent said “you’d better finish your shift and go look for another job” - Authority found fair and reasonable employer, without some binding arrangement applicant would be available at such short notice, would not have dismissed applicant for not being available for extra work that day - Dismissal unjustified - Remedies - No contributory conduct - Applicant entitled to holiday pay - Respondent failed to provide wage and time records - Authority calculated holiday pay based on applicant’s minimum hours per week - Respondent to pay applicant $228 holiday pay - Authority satisfied applicant made reasonable efforts to mitigate loss - Applicant intended to remain in employment with respondent for foreseeable future - However, found respondent experiencing financial difficulties by four months post termination of applicant’s employment and so strong likelihood applicant’s employment would not have continued after that period - Reimbursement of lost wages to be limited to 16 weeks - Found was applicant’s first job after eleven year absence from paid workforce - Applicant humiliated to lose job and claimed dismissal damaged her confidence in seeking other work - $4,000 compensation appropriate - COSTS - Successful personal grievance - One hour investigation meeting - Applicant sought contribution to costs - Applicant accepted costs should be assessed on pro rata basis - Respondent to pay applicant $500 contribution to costs |
| Result | Application granted ; Holiday pay ($228) ; Reimbursement of lost wages ($2,400) ; Compensation for humiliation etc ($4,000) ; Costs in favour of applicant ($500) |
| Main Category | Personal Grievance |
| Statutes | ERA s63A(2);ERA s65;ERA s128;ERA Second Schedule cl12 |
| Cases Cited | Cowan v Baggstrom unreported, Shaw J, 13 Jul 1999, WC 39/99;Cuttance t/a Olympus Fitness Centres v Purkis [1994] 2 ERNZ 321;Quinn (Labour Inspector) v Minato Ltd unreported, A Dumbleton, 18 Aug 2010, AA 366/10 |
| Number of Pages | 6 |
| PDF File Link: | aa 473_10.pdf [pdf 24 KB] |