| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 525/10 |
| Hearing date | 13 Jul 2010 and 15 Sep 2010 |
| Determination date | 23 December 2010 |
| Member | Y S Oldfield |
| Representation | R Reed; Q Shu |
| Location | Auckland |
| Parties | Peng v Drapac Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant alleged disadvantage grievances associated with changes to his duties, poor working conditions and under-resourcing - Applicant claimed raised grievances with respondent via emails – Authority found applicant did raise issues of concern but found nothing that amounted to raising of grievance as required by Employment Relations Act 2000 (“ERA”) – Found as insufficient evidence grievances properly raised could not consider them - Applicant claimed respondent’s breach of s66 ERA caused unjustified disadvantage – Applicant employed on series of three fixed term contracts (“IEA”) – Claimed IEAs lacked any reference to reasons for fixed term – Authority found none of IEAs gave reason for being fixed term therefore failed to comply with s66 ERA – However, found no evidence matter raised with respondent therefore unable to investigate - Found even if matter had been raised as grievance no evidence of disadvantage - Applicant claimed respondent’s failure to pay bonus believed entitled to caused unjustified disadvantage – Found no evidence matter raised as personal grievance in accordance with ERA – Found even if grievance properly raised conditions of bonus not met so applicant could not reasonably expect to have obtained benefit of bonus if dismissal had not intervened - UNJUSTIFIED DISMISSAL – Poor Performance – Respondent concerned application for NZQA registration applicant working on below standard and could not be completed by deadline – Respondent claimed expressed concerns to applicant via email - Authority found where employer seeks to justify dismissal on basis of poor performance, law required warnings which were clear and precise about both shortcomings in work and in improvements sought – Found email references did not meet standard for formal employment warnings – Found no other specific evidence to establish warnings given – Dismissal unjustified - Remedies – No contributory conduct - Applicant gave little evidence of efforts to mitigate loss – Applicant did claim unemployed for extended period after dismissal – Authority accepted specialised nature of applicant’s skills as research scientist made finding suitable work difficult - Three months reimbursement of lost wages appropriate - Authority accepted applicant’s evidence of distress suffered as result of suddenness of dismissal and hardship faced by family as result - $7,000 compensation appropriate - ARREARS OF HOLIDAY PAY - Applicant began working at respondent on specified date but did not enter into first IEA until about two months later – Applicant sought payment for that period – Respondent claimed not in position to employ applicant until granted Work and Income subsidy for applicant’s wages – Claimed when subsidy granted entered into IEA and began paying applicant - Claimed applicant came into work to gain experience during period before IEA entered into - Authority found insufficient evidence to establish wages owed for period before IEA entered into – No orders made - Applicant claimed owed holiday pay – Applicant claimed first two IEAs provided holiday pay to be included in hourly rate - Authority found as IEAs did not comply with s66 ERA and second IEA was for 12 month period requirements for “pay as you go” holiday pay not met – Applicant entitled to holiday sought - Scientist |
| Result | Applications granted (Unjustified dismissal)(Holiday Pay) ; Reimbursement of lost wages ($12,500) ; Compensation for humiliation etc ($7,00) ; Arrears of wages ($7,250.28) ; Application dismissed (Unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s28(1);ERA s66;ERA s66(4);ERA s66(4)(b);ERA s114;ERA s128;ERA s128(2) |
| Number of Pages | 13 |
| PDF File Link: | aa 525_10.pdf [pdf 52 KB] |