| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 234 |
| Hearing date | 8 Apr 2011 - 3 May 2011 (2 days) |
| Determination date | 02 June 2011 |
| Member | R A Monaghan |
| Representation | A M Rathore (in person) ; M I Haq, K Ikram |
| Location | Auckland |
| Parties | Rathore v Kiwitax Consultants Ltd and Anor |
| Other Parties | Basit Accounts and Tax Consultants Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct - First respondent (“KCL”) claimed applicant never commenced employment under parties’ employment agreement – Applicant had work permit and hoped to obtain permanent residence – Applicant approached second respondent (“BATCL”) for work but advised did not need another employee – BATCL claimed applicant made further visits about wish to work so could commence permanent residence application – Parties disputed whether BATCL made applicant employment offer – BATCL’s directors also KCL’s directors – KCL not operating at time applicant approached BATCL but directors discussed with applicant considering using KCL for management services – Respondent denied applicant started work for BATCL two or three days per week – Claimed applicant used telephone at BATCL to contact New Zealand Immigration Services (“NZIS”) or dropped off documents, but did not perform any work for BATCL – Authority found more likely applicant did not work for BATCL during period - Applicant claimed later offered 35 hours per week on minimum wage commencing when applicant’s work permit expired – Authority found likely draft employment agreement commencing four months later prepared between applicant and KCL for NZIS purposes – Applicant did not commence employment on agreed start date – Authority noted on commencement date applicant’s work permit current and had applied for further work permit pending residence application – Applicant claimed continued working for BATSL on alleged part-time basis – Claimed directors required payment for their support with residence application and had done so with other employees but failed to provide further evidence – Authority found directors did not request payment from applicant and had not engaged in similar conduct previously – Found more likely applicant did not commence 35 hours per week employment as was helping friend – Respondent prepared performance evaluation week after commencement date recording applicant had not attended office at all – Evaluation noted applicant given verbal warning – Applicant told directors next month work permit expired and could not work illegally – Authority noted applicant continued with other job – Directors completed second performance evaluation again recording applicant’s failure to attend office and noted applicant informed agreement might be terminated – Applicant received work permit but failed to attend office and applicant notified further breaches would result in immediate termination – Applicant’s employment terminated after continued failure to report for work and NZIS notified – Authority found employment relationship did not commence as applicant never performed any work for KCL – Noted KCL did not treat applicant’s failure to report as repudiation, rather used unnecessary performance review process – Found whether applicant’s conduct treated as repudiation or dismissal, failure to report to work inexcusable and applicant pursued own interests even when had work permit – Dismissal justified – ARREARS OF WAGES – Applicant claimed unpaid wages outstanding – Authority found neither BATSL nor KCL entered into enforceable employment agreement with applicant before 35 hours per week agreement commenced – Found applicant and KCL later parties to 35 hours per week employment but, as applicant did not work, not entitled to any payment – Practice Manager |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s6(1)(b)(ii) |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Auckland_234.pdf [pdf 27 KB] |