| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 361 |
| Hearing date | 2 Aug 2011 |
| Determination date | 17 August 2011 |
| Member | R Larmer |
| Representation | L Darroch ; V Kumar |
| Location | Auckland |
| Parties | Kumar v Jays Kitchens and Shop Fitters PVT Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed by respondent when locked out of work – Respondent director (“K”) claimed locked out by landlord because respondent behind with rent – K failed to attend mediation on two occasions – K failed to comply with Authority’s directions – K failed to bring any information to investigation meeting – Authority declined K’s adjournment application because of K’s failure to comply with Authority’s directions – K denied received Authority’s directions – Authority found directions personally served on K – Authority preferred applicant’s evidence as K not reliable witness – K offered to support applicant’s permanent residency application so applicant reluctant to push underpayment of wages issue – K failed to follow through with support – Applicant now on visitor permit and unable to work in New Zealand – Found likely K misled applicant about supporting permanent residency application so applicant would not pursue wage arrears – Found applicant dismissed when showed up for work to find premises locked – Found K failed to contact applicant for three days – Dismissal unjustified – UNJUSTIFIED DISADVANTAGE – Applicant claimed disadvantaged by respondent because underpaid and correct tax not paid – Found applicant disadvantaged as not paid full wages, induced to take no action over wages shortfall, incurred significant cost of residency application then K withdrew support at last minute, and applicant locked out of business during Christmas and New Year period and not paid – Unjustified disadvantage – REMEDIES – No contributory conduct – Found applicant took appropriate steps to mitigate loss – Found K contacted potential employers and told should not offer applicant work because applicant was trouble maker – Authority declined to award more than three months lost wages due to respondent’s financial difficulties – Found applicant under significant financial pressure – Found applicant and wife unable to afford food and severely depressed – Found applicant’s humiliation and distress considerable – Found award in excess of $10,000 appropriate but applicant only sought $10,000 – ARREARS OF WAGES AND HOLIDAY PAY – Applicant claimed owed unpaid wages – K accepted applicant underpaid but blamed problems with customers paying bills – Applicant did not claim wages for unpaid trial – Found employment agreement (“EA”) contained provisions contrary to employment law and referred to legislation that did not exist – Applicant claimed paid sporadically and for less hours than actually worked – Applicant claimed frequently required to work more than 40 hours per week without payment – Found applicant never agreed to work more than 40 hours per week without payment – K claimed parties agreed on lesser pay rate than stated in EA – Found applicant to be paid at higher rate in EA for all hours worked – Authority preferred applicant’s wage schedule – Found unpaid wages due and owing – Found applicant not paid time and half for working on public holidays – Found applicant entitled to payment for alternative day holidays – Applicant claimed not told about closedown period over Christmas and New Year and left without payment – Found closedown not in accordance with Holidays Act 2003 – Found applicant entitled to payment for period – Found unpaid holiday pay due and owing – PENALTY – Respondent directed to provide wage and time records – K sought adjournment to bring wage and time records to investigation but still failed to provide records – $4,000 penalty appropriate – Cabinet Maker |
| Result | Applications granted ; Reimbursement of lost wages ($9,360) ; Compensation for humiliation etc ($10,000) ; Arrears of wages and holiday pay ($27,086.15) ; Penalty ($3,000)( Payable to Applicant) ($1,000)(Payable to Crown) ; No order for costs ; Disbursements in favour of applicant ($71.56)(Filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s130;ERA s130(2);ERA s130(4);ERA s132(2);ERA s133(1)(b);ERA s135(2)(b);ERA s136(2);Holidays Act 2003 s29 |
| Number of Pages | 24 |
| PDF File Link: | 2011_NZERA_Auckland_361.pdf [pdf 65 KB] |