| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 5 |
| Hearing date | 20 Dec 2010 |
| Determination date | 10 January 2011 |
| Member | R A Monaghan |
| Representation | A Taylor ; T Kurta |
| Location | Auckland |
| Parties | Saunders v Paul James Contract Services Ltd t/a PJs Cartage |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievances raised within 90 days – Authority found disadvantage grievances not raised within 90 day period – Found no application made to raise grievances out of time – Found several grievances raised outside three year limit – UNJUSTIFIED DISMISSAL – Redundancy – Applicant paid for 40 hours per week even if 40 hours not worked – Applicant advised downturn in work available and could not afford to pay minimum 40 hours per week – Parties agreed 40 hours would be paid but difference between hours worked and hours paid counted as annual leave – Health condition and lack of willingness to obtain licences to operate other machinery limited tasks applicant could perform and contracts pursued by respondent – Applicant declined respondent’s suggestion to become self-employed or casual worker – Respondent wrote letter to applicant advising now casual employee – Applicant raised personal grievance but continued to work – Respondent acquired new contract and applicant unable to do work required – Applicant informed no work available in light of applicant’s casual status – Applicant claimed dismissed – Found notification of change in applicant’s terms of employment from permanent to casual amounted to unilateral repudiation of employment agreement – Found applicant continued to work on casual basis without conveying protest – Found in continuing to work, applicant affirmed new arrangement – Found applicant not dismissed as casual employee – BREACH OF CONTRACT – PENALTY – Found respondent failed to provide written employment agreement prior to entry into employment relationship – Found Employment Relations Act 2000 s64 applied – Authority rejected applicant’s claim of continuing breach – Found matter not raised in time – No action for recovery penalty commenced until employment relationship problem filed – No order for penalty – Truck Driver |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s63A;ERA s64;ERA s114(1);ERA s114(6);ERA s135(5) |
| Cases Cited | NZ Amalgamated Engineering etc IUOW v Ritchies Transport Holdings Ltd [1991] 2 ERNZ 267 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Auckland_5.pdf [pdf 34 KB] |