Employee must seek work despite wanting reinstatement - Employment Update, Week 2 - August

If an employee pursues a personal grievance action and seeks post-dismissal lost remuneration from the Employment Relations Authority the employee must show that the employee has attempted to mitigate their loss. The employee must try obtain new employment and/or other income and cannot rely on the Authority awarding full lost remuneration if the employee has made no attempts to obtain income. However, there can be a misconception that where the employee is seeking reinstatement to their employment that the employee is under no obligation to do so.

In a recent determination, the Authority reduced an employee’s lost wages award to one month due to the employee’s failure to mitigate loss despite the employee seeking reinstatement. The Authority applied a previous Court of Appeal decision from 2005 which clarified that an employee is obliged to mitigate their loss regardless of whether or not the employee is seeking reinstatement: Carter Holt Harvey Ltd v Yukich. The employee did not have evidence of applying for new employment until almost two months after her employment was terminated. The Authority did not accept seeking reinstatement deferred the employee’s obligation to mitigate their losses for two months.

See Deng v Digital Jungle (NZ) Ltd [2018] NZERA Auckland 337.

Reproduced by permission of Wolters Kluwer NZ

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Employee must seek work despite wanting reinstatement during personal grievance action