| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 304 |
| Hearing date | 16 May 2011 |
| Determination date | 13 July 2011 |
| Member | V Campbell |
| Representation | D Andrews ; J Paterson |
| Location | Whakatane |
| Parties | Duggan v Hori and Anor t/a Orete Dairy Farm |
| Other Parties | Hori |
| Summary | UNJUSTIFIED DISADVANTAGE – HEALTH AND SAFETY - Applicant claimed disadvantaged as continually pressured by respondent to work extra hours – Respondent claimed applicant worked hours in accordance with employment agreement – Authority found applicant’s supporting evidence of hours worked inconsistent and had significant omissions - Parties agreed to seasonal fluctuations in hours and that applicant would comply with respondent’s requirements – Found applicant agreed to working some weekends and not disadvantaged by hours worked – Respondent claimed applicant abusive and hosed respondent’s director (“K”) with high pressure hose – Directors’ daughter gave evidence of applicant’s language and comments made while working together – Applicant’s diary notes included threat to kill K’s husband - Found applicant did not challenge respondent’s warnings as accepted fair and reasonable – Found abuse instigated by applicant – Applicant previously notified Department of Labour respondent failed to provide healthy and safe workplace – Inspector satisfied respondent ordered protective equipment and vehicle repaired – Applicant claimed illness caused by herbicide used in workplace and lodged claim for chemical poisoning – ACC panel concluded likely applicant exposed to chemicals through skin but no long term effects reported – Found applicant did not follow respondent’s instructions when used herbicide – Applicant not disadvantaged by health and safety concerns – Applicant claimed disadvantaged as not allowed to use vehicle and vehicle poorly maintained – Respondent claimed applicant refused to use vehicle as believed unsafe – Found lack of transport affected applicant’s ability to complete work but applicant refused to use vehicle – Found respondent attempted to resolve problems with accommodation but applicant not cooperative – No disadvantage - UNJUSTIFIED DISMISSAL – Serious Misconduct – Respondent issued applicant with final warning including failure to follow reasonable directions and general aggression in workplace – Respondent claimed when questioned applicant about not turning up for work applicant aggressive and walked away – Applicant suspended and refused to attend mediation – Applicant dismissed and given opportunity to provide written response or meet with respondent – Applicant refused to attend meeting and employment terminated – Found applicant provided with reasonable opportunity to explain actions and fair and reasonable employer would have dismissed applicant – Dismissal justified - ARREARS OF HOLIDAY PAY – Applicant sought unpaid holiday pay – Respondent claimed parties reached agreement about unpaid holiday pay – Respondent previously told by Department of Labour agreement did not comply with Holidays Act 2003 – Found applicant entitled to be paid $2,447 holiday pay – ARREARS OF WAGES - Applicant claimed paid less than amount in employment agreement and less than minimum wage – Found applicant paid in accordance with employment agreement incorporating market rent for provided accommodation – No arrears of wages - Dairy Farm Production Assistant |
| Result | Application granted (arrears of holiday pay) ; Arrears of holiday pay ($2,447.48) ; Applications dismissed (unjustified disadvantage) (unjustified dismissal) (arrears of wages) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s66(4);ERA s66(6);ERA s131;Health and Safety in Employment Act 1992;Holidays Act 2003 s57;Minimum Wage Act 1983;Official Information Act 1982;Residential Tenancies Act 1986 |
| Cases Cited | Auckland Chemical, Paint etc IUOW v Healtheries of NZ Ltd [1990] 2 NZILR 701;Graham v Airways Corporation of New Zealand Ltd [2005] ERNZ 587;Tawhiwhirangi v Attorney-General [1993] 2 ERNZ 546 |
| Number of Pages | 13 |
| PDF File Link: | 2011_NZERA_Auckland_304.pdf [pdf 46 KB] |