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Vukomanovic v Sportzone Sports Ltd
7 Aug 2006, G Wood, WA 112/06, (10 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal -
Applicant employed to fundraise for community soccer projects - Second
respondent ("M") director of first respondent ("S")
- M concerned following comments from soccer community about applicant's
behaviour - M alleged applicant took business cards believing were season
tickets and intended to sell them - Dismissed applicant without raising concerns
- Insufficient evidence supporting serious allegation applicant sought to profit
from cards - S accepted procedures in dismissing not those of fair and
reasonable employer - However, claimed had good cause to dismiss - No procedural
steps taken - No substantive ground existed that would have led fair and
reasonable employer to dismiss - Applicant had difficulties with English -
Issues of communication should have been worked through - Remedies - S in bad
financial position - Could not afford to employ applicant - In all circumstances
reinstatement impracticable - ARREARS OF WAGES - Failed to pay final pay -
Parties agreed to pay rise but no increase ever paid - Agreement subject to
implied condition fundraising successful - Fundraising unsuccessful, therefore
entitled to wages at original rate - PENALTY - S breached duty by withholding
final pay - M not personally liable as acted at all times as director - No good
purpose served in paying penalty to Crown - Length of service 11 months -
Project Leader
Result: Application granted (Unjustified dismissal) ; Reimbursement of lost wages (three months) ; Compensation for humiliation etc ($2,500) ; Arrears of wages (Quantum to be determined) ; Application dismissed (Penalty) ; Disbursements ($70)(Filing fee)
Arrears - Holiday Pay
Booker (Labour Inspector) v Gill t/a Gills Cleaning Services
15 Sep 2006, V Campbell, AA 294/06, (3 pages)
ARREARS OF HOLIDAY PAY - Applicant Labour Inspector sought holiday
pay, interest, penalty and costs - Outstanding holiday pay owed upon termination
of employment - No appearance by respondent - No good cause for failure to
attend - Authority satisfied respondent served notice of investigation meeting -
Respondent failed to keep or produce wage and time records - Prejudiced
applicant's ability to bring accurate claim - Arrears of holiday pay due and
owing - Interest 8.5 percent - Applicant directed to serve copy of determination
on respondent forthwith - PENALTY - Respondent in breach of ERA s130 2000 for
failure to keep wage and time records - Appropriate penalty be imposed - COSTS -
Applicant entitled to filing fee -
Cleaner
Result: Application granted ; Arrears of holiday pay ($555.69)(Payable to Labour Inspector) ; Interest (8.5%) ; Penalty ($250)(Payable to Crown) ; Orders accordingly ; Disbursements in favour of applicant ($70)(Filing fee)
Gilbert v EDI Electrical Ltd
28 Feb 2007, J Cricthon, CA 20/07, (8 pages)
UNJUSTIFIED DISMISSAL - Applicant received sports injury - Return
to work delayed as injury took longer to heal than anticipated - Applicant
attempted to contact respondent on cell phone about progress and left medical
certificates in mail box - Parties had no other contact - Respondent claimed
applicant told not to call cell phone and regularly did not listen to messages -
On recovery applicant returned to work with father and claimed told no job for
him - Respondent claimed said was no work at that time - Whether dismissed -
Respondent had responsibility to ensure applicant clear no work available
"at present" - Took no steps to disabuse applicant of view had
lost job - Authority not satisfied parties did all could have done to
communicate - Applicant and father interpreted meeting as dismissal - On balance
of probabilities not persuaded dismissal did not occur - Unjustified dismissal -
UNJUSTIFIED DISADVANTAGE - Respondent failed to deal prudently and sensibly with
absence of information - Respondent in stronger position - Had duty to take all
reasonable steps to ensure information required from applicant provided -
Unjustified action - Also disadvantaged by respondent's delay in complying with
request by ACC for information - Due to unreasonable delay earnings related
compensation payment delayed - Unjustified disadvantage - Remedies - Applicant
failed to pursue other means of contacting respondent - Obliged to alert
prolonged absence and explain basis for it - Contributory conduct 10 per cent -
ARREARS OF HOLIDAY PAY - Respondent claimed agreement applicant would receive
sick pay prior to entitlement but if left job within six months would forfeit
right to holiday pay - No evidence agreement existed - However, such agreement
without force as avoided effect of minimum rights in Holidays Act 2003 - Arrears
due and owing - Length of service three months one week - Electrical
technician
Result: Application granted ; Reimbursement of lost wages ($7,411.69) ; Compensation for humiliation etc (Unjustified dismissal)($5,000 reduced to $4,500) ; (Unjustified disadvantage)($4,000 reduced to $3,600) ; Arrears of holiday pay (Quantum to be determined) ; Costs reserved
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