| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 342 |
| Hearing date | 28 Jul 2011 |
| Determination date | 29 July 2011 |
| Member | R Arthur |
| Representation | D Gelb ; no appearance |
| Location | Auckland |
| Parties | Andrews v Lets Get It Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unjustifiably dismissed by respondent – No appearance for respondent – Applicant entitled to salary under employment agreement – Applicant sent email to businessman (“Z”) who financed respondent regarding future plans for respondent – Applicant received email from Z proposing to pay applicant on commission basis only within a week because current costs could not be afforded – Applicant received final salary payment from respondent – Respondent representative claimed applicant’s contract terminated as company shutdown – Authority found real nature of applicant’s relationship with respondent one of employment – Found employment relationship ended when respondent would no longer honour agreement to pay applicant salary – Found respondent’s decision to switch to commission only payments made unilaterally without proper consultation and in breach of employment agreement – Found reasonably foreseeable applicant would not tolerate breach – Found clear from emails applicant received that respondent intended employment to continue but only on terms which were unacceptable to applicant – Dismissal unjustified – REMEDIES – No contributory conduct – Applicant sought three months lost wages – Found applicant’s loss did not amount to three month period – Found applicant’s efforts to mitigate loss ended when enrolled in development course – $6,153 reimbursement of wages appropriate – Found applicant entitled to $710 for reimbursement of mobile phone account – Found sudden loss of job and income meant applicant could not meet commitments for financial support to mother and two friends which was distressing – $6,000 compensation appropriate – COSTS – Less than half-day investigation meeting – Applicant sought contribution to costs – Costs in favour of applicant $1,500 – Sales Representative |
| Result | Application granted ; Reimbursement of lost wages ($6,153.84) ($710)(mobile phone account); Compensation for humiliation etc ($6,000) ; Costs in favour of applicant ($1,500) ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s128;ERA s174;ERA Second Schedule cl12 |
| Number of Pages | 6 |
| PDF File Link: | 2011_NZERA_Auckland_342.pdf [pdf 20 KB] |