| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 66 |
| Hearing date | 18 Feb 2011 |
| Determination date | 17 May 2011 |
| Member | M B Loftus |
| Representation | D Ussher (in person) ; A Gaur |
| Location | Blenheim |
| Parties | Ussher v BK Horticulture Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably dismissed, claimed not paid for work performed and made number of allegations of ‘violation of employment laws’ - Respondent claimed never employed applicant as applicant refused to complete required documents and insisted be allowed to trial work before employment commenced – Claimed any “work” performed by applicant was consequence of self imposed trial - Found parties’ differed significantly in recollection of events – Applicant claimed never given documents – Claimed told would be paid on piecework basis and minimum wage not guaranteed – Claimed when told respondent’s manager (“G”) minimum wage required by law G became angry and told him ‘you can stuff your law and don’t ever come back to work’ - Applicant’s evidence preferred – Authority found applicant’s evidence remained totally consistent throughout and while Authority did not accept everything said did not feel was attempting to mislead – Found respondent’s evidence contained significant contradictions – Authority accepted applicant’s claim was advised not to return to work – Found applicant was ‘sent away’ – However, found had difficulty concluding applicant dismissed – Found applicant was casual employee – Found casual employment came to end at end of each agreement and no guarantee of further engagements - Found fact discussion which amounted to sending away occurred after end of work day combined with lack of guaranteed reengagement meant could not be considered dismissal – However, found applicant had suffered unjustified disadvantage – Accepted applicant spoken to inappropriately – Found sending away deprived applicant of work – Unjustified disadvantage - Remedies – No contributory conduct - Found reinstatement not an option – Found as was causal seasonal work no position to reinstate applicant to – Found unclear whether applicant sought reimbursement of lost wages but given casual nature of employment no award would have been made – Found while clear applicant upset about way treated and loss of opportunity to work little direct evidence in support of claim provided - $1,500 compensation appropriate - ARREARS OF WAGES – Applicant claimed not paid for hours worked but unable to quantify claim – Found applicant paid for hours recorded on timesheets - Application dismissed – Casual Labourer |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($1,500) ; Application dismissed (arrears of wages) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA s120;Minimum Wage Act 1983 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Christchurch_66.pdf [pdf 30 KB] |