| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 266 |
| Hearing date | 28 Mar 2011 |
| Determination date | 20 June 2011 |
| Member | V Campbell |
| Representation | C Speksnijder ; J Dhammi |
| Location | Auckland |
| Parties | Naidu v Save N Safe Ltd t/a Keith Weir Motors |
| Summary | ARREARS OF WAGES – Applicant claimed respondent did not pay wages in accordance with employment agreement – Applicant sought $11,115 difference between amount received and contracted hourly rate – Authority found applicant not paid for any Saturdays worked – Found applicant entitled to $11,115 arrears of wages – Found applicant entitled to $360 bereavement leave - ARREARS OF HOLIDAY PAY – Applicant sought $4,399 holiday pay – Respondent provided evidence of partial payment of holiday pay including deductions – Applicant acknowledged had agreed to one deduction but not to deduction for purchases – Authority found more likely than not applicant agreed to pay for purchases – Found applicant entitled to $3,242 arrears of holiday pay - UNJUSTIFIED DISADVANTAGE – Applicant requested leave to visit seriously ill family member – Respondent told applicant required 2 weeks notice to take leave but respondent never formally acknowledged request – Applicant left New Zealand to attend funeral – Applicant claimed unjustifiably disadvantaged by respondent’s failure to grant leave – Authority found respondent failed to advise applicant whether leave approved but applicant not unjustifiably disadvantaged – UNJUSTIFIED DISMISSAL – Serious Misconduct - Respondent told applicant to go to funeral if had to – When applicant returned given letter terminating employment as allegedly grossly negligent, guilty of serious misconduct, poor performance and had harmed respondent’s reputation – Letter referred to warnings previously issued more than 12 months before dismissal – Authority found respondent did not advise applicant of allegations or provide opportunity to respond - Found respondent did not act as fair and reasonable employer – Dismissal unjustified – REMEDIES – No contributory conduct - $10,400 reimbursement of lost wages appropriate - $5,000 compensation appropriate – GOOD FAITH – Applicant claimed respondent breached good faith obligations when failed to respond to leave requests – Authority found respondent’s failure to provide reasonable explanation for leave refusal and failure to adhere to procedural fairness principles breached good faith obligations – PENALTY – Authority found respondent’s breaches deliberate and serious - $1,000 penalty appropriate – No penalty for respondent’s failure to provide wage and time records – COSTS – Applicant sought $2,500 contribution to costs – Respondent to pay applicant $2,000 contribution towards costs - Mechanic |
| Result | Applications granted (arrears of wages and holiday pay) (unjustified dismissal) (good faith) ; Arrears of wages ($11,115) ; Arrears of bereavement leave ($360) ; Arrears of holiday pay ($3,242.56) ; Interest (8.4%) ; Reimbursement of lost wages ($10,500) ; Compensation for humiliation etc ($5,000) ; Penalty ($1,000)(Payable to Crown) ; Application dismissed (unjustified disadvantage) ; Costs in favour of applicant ($2,000) |
| Main Category | Arrears |
| Statutes | ERA s4A;ERA s4(1A);ERA s66;ERA s103A;ERA s123(1)(b);ERA s124;ERA Second Schedule cl11 |
| Cases Cited | Bilkey v Imagepac Partners, unreported, Colgan J, 7 October 2002, AC 65/02;New Zealand Storeworkers IUOW v South Pacific Tyres (New Zealand) Ltd [1990] 3 NZILR 452 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Auckland_266.pdf [pdf 34 KB] |