| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 93 |
| Hearing date | 19 May 2011 |
| Determination date | 31 May 2011 |
| Member | D Asher |
| Representation | R Ward ; D Mitchell |
| Location | Palmerston North |
| Parties | Smith v The Happy Hog Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days –Respondent claimed received no notice of grievance – Authority found respondent advised via email applicant believed had been constructively dismissed – Found likelihood grievance raised within 90 days reinforced by telephone conversation between parties and attempted mediation – Found grievance raised within 90 days – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed bullied by co-workers and respondent director which caused applicant stress and fatigue and worsened medical condition causing applicant to resign – Applicant claimed stress increased when director threatened counsel with physical violence and abused counsel at mediation – Respondent claimed applicant received number of warnings during employment – Respondent claimed applicant did not raise concerns regarding bullying or stress – Respondent claimed notice of resignation did not specify any concerns with employment – Applicant sought remedies not available in Authority – Found applicant could not detail when and where and by whom applicant was bullied – Found claims generalised – Found applicant never raised concerns about medical condition – Applicant confirmed poster in workplace contained steps to be taken in respect of employment relationship problems – Found resignation letter made no reference to allegations – Found no evidence to support threats of violence and abusive conduct by director – Found applicant failed to demonstrate any breach of duty by employer – No constructive dismissal – ARREARS OF WAGES – Applicant claimed because of respondent’s failure to pay wages, stress further heightened when guitar and amplifier removed by bailiff thus depriving applicant of only other source of income – Found no evidence to support claim applicant owed arrears of wages – Found no evidence of agreed patterns of work in conflict with record of hours worked – Found record did not include applicant’s address, kind of work employed to do, or whether applicant employed on individual or collective agreement – Found no penalty sought in respect of wages and time record – No arrears of wages – PENALTY – Applicant claimed no employment agreement (“EA”) – Applicant’s representative confirmed applicant sought penalty for non provision of EA – Found applicant did not know of cause of action until received advice from representative – Found claim commenced within 12 months of date when cause of action should reasonably have become known to applicant – Found respondent had no explanation for failure to provide EA – Authority rejected respondent’s submission breach was technical and slight – $2,000 penalty appropriate – Found penalties doubled in amendment to Employment Relations Act 2000 – Farm Worker |
| Result | Application granted (raising personal grievance) (penalty) ; Penalty ($2,000)($1,000 payable to Crown)($1,000 payable to applicant) ; Application dismissed (unjustified dismissal) (arrears of wages) ; Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA s60;ERA s63A(2);ERA s123;ERA s130;ERA s134A(5);ERA s136(2) |
| Cases Cited | The Wellesley Ltd v Adsett unreported, Shaw J, 3 Dec 2007, WC 31/07 |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Wellington_93.pdf [pdf 26 KB] |