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Chiu v New Deli & Cafe Ltd and Anor
18 Nov 2008, A Dumbleton, AA 394/08, (35 pages)
PRACTICE AND PROCEDURE - Respondents two separately incorporated companies with same directors - Written employment agreement stated both respondents were "The Employer" - Authority found applicant employed by both respondents at same time - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Applicant advised respondent that pregnant - Applicant raised disadvantage grievance with respondents, stating disadvantaged and discriminated against by reason of pregnancy - Applicant dismissed two days later - Alleged ground for dismissal was failure to provide proof of eligibility to legally work in New Zealand - Respondent offered job back on condition applicant provided proof of immigration status - Applicant claimed dismissal unjustified due to discrimination by reason of pregnancy - Respondent denied claims, and argued applicant employed 3 weeks, not six months - Conflict in evidence as to term of employment - Parties called evidence from customers of café, past and present employees, telephone records, forensic examination of handwriting, bus tickets and bank deposit receipts - Authority found more than likely that applicant employed for over six months, and that respondents called false evidence - Authority rejected respondent's alleged justification for dismissal - Accepted applicant's evidence that already provided satisfactory proof of eligibility to work so did not provide it again when requested - Found respondent's real concern likely impending disclosure to IRD of respondent's failure to pay PAYE on wages when applicant applied for paid maternity leave - Applicant's immigration status pretext for dismissal - Real reason applicant's pregnancy or impending parental status and its further consequences - No justification for dismissing applicant on grounds of pregnancy - Dismissal unjustified - Due to close proximity in time and event, Authority found dismissal grievance subsumed disadvantage and discrimination grievances - Found in any case, no actual disadvantage or discrimination occurred prior to dismissal - Remedies - No contributory conduct - Authority considered when applicant would have stopped work due to pregnancy - Requirement to mitigate loss considered against respondent's failure to attend mediation in timely manner - Thirteen weeks lost wages awarded - Applicant suffered substantial emotional harm through dismissal and loss of chance to secure maternity leave - Harm aggravated by respondent's conduct in persisting with false evidence and insulting insinuations about applicant - $8,000 compensation appropriate - PARENTAL LEAVE - Authority found unjustified dismissal prevented applicant from applying for maternity leave - No reason why application would not have been accepted - Entitled to compensation for loss of opportunity - Authority considered compensation for loss of expected statutory benefit could be awarded under s123(1)(c) ERA - Civil remedy of compensatory damages for breach of contract also available under s162 ERA - Loss quantifiable as would have received 14 weeks pay - Loss directly and foreseeably arose from respondent's unlawful act of unjustified dismissal, and not remote consequence - Authority awarded sum to restore applicant to position if opportunity to apply for paid maternity leave not unlawfully taken away - ARREARS OF WAGES - Authority found applicant received holiday pay for three weeks rather than six months - Authority accepted applicant's calculations - Holiday pay owing - Two days pay also owing - COSTS - Applicant represented self - No costs or disbursements awarded - Waitress
Result: Application granted (unjustified dismissal) ; Arrears of wages ($239.20) ; Arrears of holiday pay ($1,384.27)(Interest 6%) ; Reimbursement of lost wages ($8,023,60)(Interest 6%) ; Compensation for humiliation etc ($8,000) ; Compensation for loss of benefit of paid parental leave ($4,619.47) ; Application dismissed (unjustified disadvantage) ; No order for costs
Leslie v Commissioner of Police
1 Dec 2008, G J Wood, WA 159/08, (6 pages)
PARENTAL LEAVE - Applicant claimed that on return to work after period of parental leave was unfairly denied right to continue working part time under respondent's Flexible Employment Option ("FEO") scheme, under which applicant worked four days per week - Respondent argued FEO did not need to be continued as had expired due to either passing of time or as result of review - Authority noted situation not flexible work arrangement under Part 6AA Employment Relations Act 2000 - Authority found issue for determination whether respondent breached Parental Leave and Employment Protection Act 1987 by failing to honour, on applicant's return to work, rights and entitlements applying to applicant's ordinary position - Authority found FEO arrangement was fixed term, and would only be subsequent period of FEO following review and new application - Initial period could not be expected to necessarily continue - In absence of review and/or new application, applicant's right to reduced working hours expired - Authority found no legitimate expectation that would return to four day week under FEO upon return from parental leave - Finding based on parental leave application wording and manager's comments during performance review - Respondent prepared to consider applicant working 30 hour week, but insisted on applicant spreading hours over five working days, while applicant insisted on four - Authority considered whether was reasonable exercise of discretion - Discretion to be exercised in good faith - Authority found no reason to doubt genuineness of views of either of key protagonists in decision - Authority satisfied found sufficient evidence that applicant should be required to meet conditions of employment by working five days a week - Respondent did not unreasonably fail to exercise discretion - Claim dismissed - Authority noted applicant entitled to make fresh FEO application at any time and that respondent must address it in good faith, in accordance with its policies
Result: Application dismissed ; Costs reserved
Oliver v Department of Labour
15 Jan 2009, G J Wood, WA 5/09, (4 pages)
PARENTAL LEAVE - Applicant returned to work for one day after commencing period of parental leave as employer short staffed - Applicant had not received standard letter stating parental leave entitlements would terminate from time undertook any work - Applicant rang Inland Revenue to inform them going to work but not informed until afternoon of day returned to work that risked payments being terminated - Department of Labour advised that parental leave expired as returned to work - Applicant applied for review of decision under s71ZB Parental Leave and Employment Protection Act 1987 ("PLEPA") - Authority found PLEPA required return to work be deliberate action, in sense that claimant knew or ought to have known that undertaking work would lead to cancellation of payments - Authority concluded applicant's actions not deliberate return to work in breach of PLEPA - Applicant not informed of consequences of return to work and likely would not have returned to work had known - Appropriate to grant review but modify duration of parental leave - No parental leave payment for day worked - Applicant to be paid 14 for week period, less one day, commencing day after returned to work
Result: Application granted ; Orders accordingly
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