| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 415 |
| Hearing date | 28 Jun 2011 - 21 Jul 2011 (2 days) |
| Determination date | 21 September 2011 |
| Member | K J Anderson |
| Representation | D Hayes ; I Hoskin (in person) |
| Location | Hamilton |
| Parties | Robertson v Hoskin |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unjustifiably dismissed by respondent – Respondent obtained contract with another transport company to transport beer – Respondent told applicant that truck had to go into workshop to have clamps fitted – Respondent concluded uneconomical to repair truck and so remained off the road – Applicant not told why further driving work unavailable and so concluded no longer had job – Authority found applicant effectively sent away by respondent – Found applicant entitled to treat employment relationship as repudiated given respondent’s total failure to reasonably communicate with applicant about why services no longer required – Dismissal unjustified – REMEDIES – No contributory conduct – Found applicant’s driving position redundant as truck no longer available and no other employment options open to applicant – Found relevant that applicant left uninformed about truck for two weeks – $5,832 reimbursement of lost wages appropriate – $1,000 compensation appropriate – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought unpaid wages and holiday pay – Found applicant entitled to $2,700 arrears of wages and $216 arrears of holiday pay – Interest payable – RECOVERY OF MONIES – Applicant sought reimbursement of personal items left in truck – Found no real evidence in regard to condition or material value of items – Found applicant could have recovered items – Authority made recommendation to respondent that before entering future employment relationship should obtain appropriate professional advice about providing compliant and signed employment agreements, timely payment of wages, holiday pay entitlements and keeping appropriate records – Truck Driver |
| Result | Application granted (unjustified dismissal) (arrears of wages and holiday pay) ; Reimbursement of lost wages ($5,832) ; Compensation for humiliation etc ($1,000) ; Arrears of wages ($2,700) ; Arrears of holiday pay ($216) ; Interest (5%) ; Application dismissed (recovery of monies) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s123(1)(ca);ERA Second Schedule cl11 |
| Cases Cited | Actors Variety etc IUOW v Rainbows End Ltd [1989] 2 NZLR 154;Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] ACJ 963;Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union Of Workers (Inc) [1994] 1 ERNZ 168 |
| Number of Pages | 7 |
| PDF File Link: | 2011_NZERA_Auckland_415.pdf [pdf 23 KB] |