| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 268 |
| Hearing date | 22 Mar 2011 |
| Determination date | 22 June 2011 |
| Member | R Arthur |
| Representation | T G Neill (in person) ; S Franklin |
| Location | Whakatane |
| Parties | Neill v Noord and Anor |
| Other Parties | M & S Noord Contracting Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed by respondents – Applicant complained worked all day with no break and first respondent (“N”) arranged applicant to go home – N did not call applicant for work on following two days – Argument ensued over telephone between parties about applicant’s competency and N claimed told applicant things not working out and not worth persevering – Authority found no written employment agreement – Applicant claimed promised steady stream of work – N claimed work not promised on continuous basis and applicant employed as casual – Found parties made arrangements which gave rise to legitimate expectations and mutual obligations – Found applicant undertook to be available for any work offered and N agreed to supply work when N had orders from landholders to do harvesting work and when weather suitable for work – Found applicant not employed on casual basis but as part time employee – Applicant claimed dismissed through N’s actions not calling applicant about work and subsequent telephone conversation between parties – N claimed did not have work on those days and claimed offered applicant work during telephone conversation – N claimed applicant failed to turn up for work and therefore abandoned employment – Found N did offer work during telephone conversation but discussion ended by N stating employment at end – Found applicant would have reasonably understood from telephone conversation that employment at end – Found N did not act as fair and reasonable employer in dealing with alleged inadequate performance by applicant – Found applicant not fairly informed of problem with work and not provided with means and opportunity to improve before decision made to dismiss – Alternatively, found fair and reasonable employer would not have relied on words spoken about working arrangements as amounting to resignation – Found respondent did not allow for cooling off period and did not act in good faith towards applicant – Dismissal unjustified – REMEDIES – No contributory conduct – Respondent claimed another employee did work applicant would otherwise have done and calculated reimbursement of lost wages on that basis – Found applicant’s hours would have totalled larger number – Found deduction to be made for contingencies and vicissitudes of life – Found applicant made reasonable endeavours to find alternative employment - $2,332 reimbursement of lost wages appropriate – $4,000 compensation appropriate – ARREARS OF WAGES – Applicant claimed not paid for work prior to dismissal – Found arrears of wages due and owing – Interest payable – Found N personally liable to meet orders as applicant opted to pursue N as second respondent undisclosed principal – Tractor Driver |
| Result | Applications granted ; Reimbursement of lost wages ($2,332.80) ; Compensation for humiliation etc ($4,000) ; Arrears of wages ($372.06) ; Interest (8.4%) ; Costs reserved ; Disbursements in favour of applicant ($70)(Filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA Second Schedule cl11 |
| Cases Cited | Bank of Montreal v United Steelworkers of America 87 CLLC 16, 044;Jinkinson v Oceana Gold (NZ) Ltd unreported, Couch J, 13 Aug 2009, CC 9/09;Neill v Noord and Anor unreported, R Arthur, 12 July 2010, AA 321/10;Telecom NZ v Nutter [2004] ERNZ 315 |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Auckland_268.pdf [pdf 36 KB] |