| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 373 |
| Hearing date | 23 Aug 2011 |
| Determination date | 24 August 2011 |
| Member | R Arthur |
| Representation | R Zhao ; no appearance |
| Location | Auckland |
| Parties | Chen v Aaron & Coma Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed by respondent – No appearance for respondent – Applicant discovered paid less than minimum wage and did not get days off after speaking to other employees – No change of hours agreed with respondent director (“S”) – Applicant claimed asked about tax arrangements but S said necessary arrangements made – Argument ensued with S and Police called – Applicant told was free to leave shop so went home – Applicant asked for time to calm down and decide whether wanted to continue employment but S refused request – Applicant claimed S said would cancel visa and send applicant back to China – S’s lawyer dismissed applicant via text message – S refused to attempt to resolve matter with applicant – Labour Inspector determined arrears claim and amount due and owing paid to applicant – Respondent claimed applicant quit on own volition and planned to set up own restaurant – Respondent claimed grievance not raised within 90 days and payment of outstanding wages settled matter – Authority found none of respondent’s contentions proved – Found respondent dismissed applicant via text message – Found applicant reasonably asked for time to cool off before decision about employment future made – Found respondent denied request rather than trying to resolve matter – Alternatively, found applicant demonstrated intention to abandon work but actions caused by respondent’s breach of terms of employment – Found applicant required to work 70 hours per week over seven days – Found employment agreement stated hours of work would be 40 hours per week – Found respondent’s actions unjustified – Dismissal unjustified – REMEDIES – No contributory conduct – Found applicant made reasonable endeavours to mitigate loss – Found applicant could have returned to China so less than three months reimbursement of lost wages appropriate – $9,375 reimbursement of lost wages appropriate – Found applicant crushed and suffered emotional distress – $8,000 compensation appropriate – COSTS – Less than half day investigation meeting – Applicant sought indemnity costs – Found indemnity costs not appropriate – Found daily tariff to be increased to reflect respondent’s failure to participate in resolution process – $2,500 contribution to costs appropriate – Noodle Shop Chef |
| Result | Applications granted ; Reimbursement of lost wages ($9,375) ; Compensation for humiliation etc ($8,000) ; Costs in favour of applicant ($2,500) |
| Main Category | Personal Grievance |
| Statutes | ERA s124;ERA Second Schedule cl12 |
| Number of Pages | 7 |
| PDF File Link: | 2011_NZERA_Auckland_373.pdf [pdf 22 KB] |