| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 386 |
| Hearing date | 24 Aug 2011 |
| Determination date | 07 September 2011 |
| Member | A Dumbleton |
| Representation | H Sutherland-Stacey, S Grice ; no appearance |
| Location | Auckland |
| Parties | Hema v Bateman |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – No appearance for respondent – Authority gave directions as to service sought by applicant and issued leave for respondent to be served out of New Zealand – Respondent advised overseas – Applicant believed when interviewed by respondent that employer was a company with the name that appeared on employment agreement – Applicant discovered that stated company either had never existed or had ceased to exist before employment started – Applicant claimed respondent was only person who could have been employer at material times – Authority found applicant was employed by respondent – UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed by respondent – Found employment agreement contained no trial period provision and in any event dismissal effected after expiry of 90 day period – Found no substantive grounds to justify dismissal – Found dismissal procedurally unjustified as applicant had no warning that respondent was considering dismissal and was given no opportunity to comment on dismissal or seek advice – Dismissal unjustified – REMEDIES – $7,215 reimbursement of lost wages appropriate – $7,000 compensation appropriate – ARREARS OF WAGES AND HOLIDAY PAY – Applicant not paid contractual notice entitlement – Applicant claimed owed holiday pay – Respondent provided no holiday or leave record – Found applicant entitled to $6,923 arrears of wages – Found applicant entitled to $1,500 arrears of holiday pay – PENALTY – Found respondent failed to keep and provide access to holiday and leave record – $3,000 penalty appropriate – COSTS – Length of investigation meeting not specified – Applicant claimed incurred $6,059 total costs – Found costs relatively modest considering problems experienced with service and the necessity to seek directions from Authority – Respondent to pay applicant $6,059 full costs – National Director |
| Result | Applications granted ; Reimbursement of lost wages ($7,215) ; Compensation for humiliation etc ($7,000) ; Arrears of wages ($6,923) ; Arrears of holiday pay ($1,500) ; Interest (5%) ; Penalty ($3,000)($1,500 payable to applicant)($1,500 payable to Crown) ; Costs in favour of applicant ($6,059.62) ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s67A;ERA s103A;ERA Second Schedule cl4A(a);Employment Relations Authority Regulations r16(3)(a)(ii);Holidays Act 2003 s83 |
| Number of Pages | 6 |
| PDF File Link: | 2011_NZERA_Auckland_386.pdf [pdf 24 KB] |