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Adsett v Wellesley Ltd
13 Mar 2007, D Asher, WA 40/07, (8 pages)
UNJUSTIED DISADVANTAGE - No written employment agreement -
Applicant responded to advertisement for camp manager - Claimed permanently
employed as camp manager with trial period - Respondent claimed offered casual
work at camp - Applicant shown around camp by other employee ("S")
- S gave evidence respondent told him applicant full-time manager when S not at
camp site - Also said applicant consistently referred to as camp manager -
Worked for respondent little over two weeks - Authority preferred applicant's
evidence employed as permanent camp manager - Had respondent complied with
obligation to provide employment agreement, written record of work to be
performed would have existed - Was major cause of employment relationship
problem - No reference to casual employment in advertisement or at interview -
While both parties' evidence credible, applicant's preferred due to S's
supporting evidence - Authority accepted S independent witness - Fact hourly
rate equated to salary offered and time sheets not required consistent with
applicant's understanding - Respondent repudiated agreement by not requiring
full time attendance and reducing pay - Significantly disadvantaged -
Unjustified disadvantage - UNJUSTIFIED DISMISSAL - Constructive dismissal -
Fairly and reasonably open to applicant to regard changes amounted to
termination of employment - In alternative, had Authority found against
unjustified dismissal, would have been appropriate to award significant
penalties for material breaches of Employment Relations Act 2000 - Would have
directed most if not all monies be paid to applicant - Respondent's failures
entirely responsible for bringing of matter - Constructive dismissal - PENALTY -
Respondent accepted breached obligation to provide employment agreement -
Failure significant contributor to finding - Also failed to advise applicant
could seek independent advice and give reasonable opportunity to seek it - Harm
caused by breach largely remedied by significant remedies awarded to applicant -
Nominal penalty - Length of service two weeks - Camp
manager
Result: Application granted ; Reimbursement of lost wages ($8,682)(three months ten days) ; Compensation for humiliation etc ($6,000) ; Penalty ($100)(To Crown) ; Costs reserved
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)
Glen v Modern Teaching Aids (NZ) Ltd
3 Aug 2006, J Crichton, CA 115/06, (10 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Employment agreement
specified six month probationary period and one week notice period - Notice
period one month on completion of probation - Respondent based in Australia -
Applicant advised in telephone discussion redundant with immediate effect -
Dispute over discussion and notice period - Question fundamentally about
consultation - Short telephone discussion only "consultation"
before redundancy - Preferred applicant's recollection - Even if preferred
respondent's would have had no difficulty concluding consultation so inadequate
as to make decision to terminate unfair - Appearance of pre-determination - Such
peremptory consultation could not comply with good faith obligations - Even if
applicant could not be redeployed employer acting in good faith would have been
prepared to be flexible as to matters such as notice - Applicant produced letter
apparently written by superior ending probationary period and confirming
permanent employment - Respondent disputed authenticity of letter and superior's
authority to end probationary period early - Claimed letter hearsay -Superior
not available to give evidence, but his direct evidence would have been
admissible - Authority's equity and good conscience jurisdiction also allowed
letter as evidence if assisted investigation - Likely letter originated from
superior - Applicant reasonably believed it represented respondent's views -
Doctrine of undisclosed principal applied entitling applicant to believe
probationary period ended - On balance of probabilities belief reasonable -
Respondent bound by letter - Unjustified dismissal - ARREARS OF WAGES - Notice
period one month - Arrears due and owing - PENALTY - Respondent's actions not
sufficiently extreme - Length of service five months - Sales
representative
Result: Application granted ; Compensation for humiliation etc ($3,000) ; Reimbursement of lost wages ($2,537.54) ; Arrears of wages ($2,812.50)(notice) ; Costs reserved
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)
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