| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 164 |
| Hearing date | 2 Aug 2011 |
| Determination date | 25 October 2011 |
| Member | J Crichton |
| Representation | P Churchman ; G Malone |
| Location | Invercargill |
| Parties | Mohammed v South Pacific Meats Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – Parties disputed date on which grievance arose – Authority found applicant out of time surrounding events beginning of season – Found grievance could only deal with alleged unjustified dismissal – However, found complaints about respondent’s behaviour in relation to events at beginning of season could be taken into account – BREACH OF CONTRACT – Applicant claimed respondent breached employment agreement (“EA”) – Applicant returned to Fiji after travel arrangements organised by Meat Industry Association of New Zealand (“MIA”) – Applicant’s son (“S”’) informed applicant received letter from respondent which indicated applicant’s start date – S spoke with respondent supervisor (“P”) about when applicant would return – S and P disputed what date S said applicant would return – Applicant made numerous failed attempts to contact respondent or MIA – Applicant contacted P who said applicant had been replaced – Applicant made own travel arrangements and arrived at workplace late on start date – Respondent told applicant had obtained replacement – Respondent claimed did not know applicant overseas – Respondent claimed entitled to replace applicant due to breach of EA – Authority satisfied notice of start date received at applicant’s residence – Found respondent knew or ought to have known that applicant not in country at time notice sent – Found P’s understanding of what S said about applicant’s intentions was mistaken – Found applicant used best endeavours to get return air travel provided through normal mechanism – Found both parties breached good faith obligations under EA as applicant should have been explicit with respondent and respondent ought to have been capable of establishing applicant still overseas – Found applicant breached EA clause which required workers to return within five working days after being notified of a return to work – Found respondent had replaced applicant before five working day period had expired – Found respondent took no steps to facilitate applicant’s return to work – Found respondent breached express terms of EA – Found in failing to appoint applicant to day shift from start of season respondent breached seniority provisions under EA – Respondent to pay applicant $31,000 damages – UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed by respondent – Found grievance could only be demonstrated if respondent unjustifiably dismissed applicant due to breach of EA – Found no evidence to support conclusion dismissal unjustified as by time of dismissal applicant employed in night shift, had no tenure beyond immediate season and was let go in terms of EA – Applicant claimed if treated correctly would have been employed on day shift, retained seniority and tenure and been let go much later – Respondent claimed nothing in EA required a worker to be employed in particular role – Applicant claimed work permit only allowed applicant to work as Halal Slaughterman – Applicant claimed subsequent attempts by respondent to get applicant to accept employment in different roles could not taken into account by Authority due to work permit – Found applicant not entitled to work in different roles – Found applicant’s appointment to night shift consistent with legal principle – Found if applicant had been properly received back into workforce then applicant would have been placed in normal role and none of events complained about would have occurred – Found by virtue of respondent’s breaches of EA respondent created causal link which led to unsatisfactory conclusion for applicant – Dismissal unjustified – REMEDIES – No contributory conduct – Found appropriate to compensate applicant by way of damages for breach of EA rather than by way of remedies for grievance – Found no wages lost as consequence of grievance – Halal Slaughterman |
| Result | Applications granted ; Damages for breach of contract ($31,000) ; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | ERA s161(1)(b);ERA s162;Interpretation Act 1999 s35 |
| Cases Cited | New Zealand Meat Workers IUW v Richmond Ltd [1992] 3 ERNZ 643 |
| Number of Pages | 16 |
| PDF File Link: | 2011_NZERA_Christchurch_164.pdf [pdf 78 KB] |