| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 254 |
| Hearing date | 20 May 2011 |
| Determination date | 13 June 2011 |
| Member | R Larmer |
| Representation | L Hemi ; J Hooper |
| Location | Gisborne |
| Parties | Paenga v Te Haumi Logging Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiable dismissed by respondent – Respondent foreman (“F”) claimed no authority to hire and fire people – Authority found F did make decisions regarding employees – Found F viewed and treated by employees as boss – Applicant blamed for incorrectly marked logs – Applicant claimed frustrated because felt F had hand in incorrectly marked logs – Applicant drove away in company car and followed by F – F claimed applicant resigned when F removed keys from company car at roadside – Applicant denied resigned – Applicant claimed apologised and did not discuss purported resignation because believed matter resolved – Respondent claimed resignation and notice period not discussed but viewed employment as over – Another argument ensued between F and applicant – Applicant claimed F said no work available – Applicant claimed dismissed because of arguments – F claimed applicant resigned and F did not have to employ applicant because notice ended – Authority preferred applicant’s evidence – Found applicant did not resign – Found fair and reasonable employer would have made further inquiries with applicant to determine what was meant by words F attributed to applicant – Found notice period needed to be discussed because no employment agreement – Found not open to F to unilaterally select notice period – Found nothing to alert applicant effectively working out notice period – Found applicant did not intend to resign – Found length of notice period not explained – Found applicant dismissed – Found F unilaterally and summarily dismissed applicant – Found F failed to follow any process – Found F dismissed applicant without good reason – Dismissal unjustified – REMEDIES – 20 percent contributory conduct – $5,867 reimbursement of lost wages appropriate - $4,800 compensation appropriate – ARREARS OF WAGES AND HOLIDAY PAY – Found respondent owed applicant money for diesel applicant put in work truck – Found parties agreed applicant would be paid chainsaw allowance – Found applicant entitled to chainsaw allowance for all hours worked – Applicant claimed unpaid travel allowance for travel from Ruatoria to pick up point – Authority not satisfied money owed – Applicant claimed unpaid travel allowance for travel to Warkworth – F claimed no agreement to pay travel allowance – Found unlikely applicant would have agreed to use own vehicle at own cost – Found travel allowance payable – Applicant claimed unpaid food allowance – Found food allowance not term or condition of employment so reimbursement not appropriate – Applicant claimed not paid for working public holiday – Found unpaid public holiday pay due and owing – Applicant claimed not paid holiday pay upon termination – Found unpaid holiday pay due and owing – Logmaker |
| Result | Applications granted ; Contributory conduct (20%) ; Reimbursement of lost wages ($5,867) ; Compensation for humiliation etc ($6,000 reduced to $4,800) ; Arrears of wages ($110)(diesel reimbursement) ($217.50)(chainsaw allowance) ($439.20)(travel reimbursement); Arrears of holiday pay ($2,080.50) ($200)(public holiday pay) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s65;ERA s103A;ERA s124 |
| Number of Pages | 18 |
| PDF File Link: | 2011_NZERA_Auckland_254.pdf [pdf 45 KB] |