| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 10 |
| Hearing date | 24 Aug 2010 - 25 Aug 2010 (2 days) |
| Determination date | 18 January 2011 |
| Member | P Cheyne |
| Representation | A McComish ; T McGinn |
| Location | Christchurch |
| Parties | Ahn v Woo & Ok Partnership |
| Summary | UNJUSTIFIED DISMISSAL – Abandonment - Respondent owned and operated restaurant – Applicant enquired of one of respondent’s owners (“K”) whether being paid at correct rate - Significant conflict in evidence over how conversation between applicant and K progressed from that point and subsequent events that led to applicant’s employment allegedly being terminated - Authority found applicant ended conversation by words to effect was leaving, reflecting her belief had been dismissed as result of questioning pay – Found both applicant and K upset and angry – Found applicant either kicked door open or slammed it shut as left – Found that angered K further and she went outside and abused applicant – Applicant called her husband to pick her up and when he arrived went back into restaurant to talk to K – Following conversation applicant left restaurant and did not return - Several days later applicant received letter from respondent claiming applicant had abandoned employment – Applicant responded stating had not abandoned employment rather had been dismissed – Authority found was neither resignation or dismissal night of heated conversation - Authority found K knew had been angry exchange – Found was then exchange where applicant’s husband made clear applicant thought had been dismissed – Found nothing in subsequent communications would have changed K’s view of that - Found probably not open to fair and reasonable employer to say applicant absented herself from work for no good reason – Found not open for fair and reasonable employer to reach such conclusion without first attempting to engage with applicant about her intentions about future of employment relationship – Found letter amounted to sending away or dismissal of applicant - Found respondent did not attempt to justify dismissal – Dismissal unjustified - Remedies – 10 percent contributory conduct – Found in kicking or slamming door as left applicant contributed in blameworthy manner to situation as prompted angry response from K – Found no claim for or evidence showing lost remuneration – Authority accepted applicant’s evidence that distressed by dismissal and worried dismissal could affect residency status - $8,000 compensation appropriate subject to reduction for contribution - ARREARS OF WAGES AND HOLIDAY PAY - Applicant claimed hourly wage should have been $16 after tax rather than before – Authority found claim arose from interpretation of employment agreement (“EA”) – Authority found phrases and clauses to be interpreted in context of whole agreement – Found EA required applicant to be paid $16 before tax – Applicant’s claim rejected - Applicant claimed employment started on specified date – Respondent claimed employment began five days later – Authority found, on interpretation of EA and evidence provided applicant’s start date that specified by respondent – No wage and time records kept – Parties’ disputed applicant’s start and finish times and when breaks taken – Found evidence more consistent with hours applicant claimed - Authority fixed applicant’s hours for purposes of calculating arrears claim - Applicant worked nine statutory holidays during employment - Applicant entitled to half time extra pay for hours worked on statutory holidays – Applicant entitled to payment for nine alternative days at specified rate - Applicant did not take annual leave during employment – Applicant entitled to four weeks’ annual leave and proportionate holiday pay for part year starting on specified date – Dispute between parties as to proper treatment of cash payments made to applicant – Authority did not accept cash payments should be ignored for purposes of assessing arrears of wages – Found cash payment to be regarded as part of applicant’s weekly earnings – Respondent to calculate assumed gross on net figure and pay PAYE component to IRD – Found gross amount then available to reduce arrears otherwise owing under determination - PENALTY – Applicant’s claims for penalties under Minimum Wage Act 1983, Wages Protection Act 1983, Holidays Act 2003, and EA declined - Applicant sought penalty for failure to keep proper time and wage records – Authority found was deliberate failure by respondent to keep records – Found failure prejudiced applicant’s ability to bring accurate arrears claim - $1,000 penalty appropriate |
| Result | Application granted (Unjustified dismissal)(Arrears of wages)(Penalty – failure to keep wage and time records) ; Application dismissed (Penalty – breach of Minimum Wage Act 1983, Wages Protection Act 1983, Holidays Act 2003 and employment agreement) ; Compensation for humiliation etc ($8,000 reduced to $7,200) ; Arrears of wages (Quantum to be determined) ; Holiday pay ($5,359.16) ; Interest (5%) ; Penalty ($1,000)(Payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s65(2)(a)(iv);ERA s113;ERA s113(2);ERA s123(1)(ca);ERA s135(2)(a);Holidays Act 2003 s40(3)(b);Holidays Act 2003 s75;Holidays Act 2003 s76(1);Wages Protection Act 1983 s2;Wages Protection Act 1983 s4;Wages Protection Act 1983 s13 |
| Cases Cited | Boobyer v Good Health Wanganui Ltd unreported, Goddard CJ, 24 Feb 1994, WEC 3/94;Brown v Five Star Pork (NZ) Ltd & Anor unreported, R Arthur, 23 Jun 2008, AA 216/08;E N Ramsbottom Ltd v Chambers [2000] 2 ERNZ 97;Lwin v A Honest International Co Ltd [2003] 1 ERNZ 387 |
| Number of Pages | 23 |
| PDF File Link: | 2011_NZERA_Christchurch_10.pdf [pdf 67 KB] |