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Darwin v New Zealand Post Primary Teachers Association
8 Mar 2007, G J Wood, WA 35/07, (4 pages)
DISPUTE - Applicant member of respondent -
Dissatisfied with services provided by respondent when experienced employment
relationship problem with former employer - Engaged external lawyer - Sought
reimbursement of legal expenses from respondent - Authority took claim to
be pursuant to s4(2)(c) Employment Relations Act 2000 which provided
relationships between union and members were employment relationships -
Applicant told if union member chose to be represented by lawyer then costs met
by member - Constitution provided legal assistance only reimbursed if
member had prior approval - Applicant chose to continue with outside lawyer
- Alleged respondent's omission serious, it acted carelessly, and
failed to act in good faith - Application demonstrated fundamental
misunderstanding of role of trade unions in society and to members -
Applicant's loss of confidence in respondent did not exempt her from
constitution - Authority did not accept respondent's advice given in
other than good faith - May possibly have been negligent, but it continued to
offer assistance and did not ignore employment relationship problem with former
employer or claim for legal fees - Had offered applicant contribution that
could be seen as covering initial advice about nature of problem - No duty
to applicant as member of respondent proven to be breached - No grounds to
claim legal costs incurred in breach of
constitution
Result: Application dismissed ; Costs reserved
Long v New Zealand Lotteries Commission
7 Aug 2006, PR Stapp, WA 111/06, (9 pages)
DISPUTE - Applicant disagreed with calculation of annual leave and
long service leave entitlements - Applicant worked shift pattern equivalent to
3.5 days per week - Had two employment agreements while employed that referred
to annual leave in weeks - However, various letters from respondent expressed
entitlement in days e.g. "3 weeks (15 working days)" - Respondent
calculated annual leave based on applicant's working week - Equated to 10.5 days
and 14 days depending on applicable agreement - Applicant claimed entitled to 15
or 20 days respectively, based on letters and calculation of pro rata long
service entitlement, which had not taken shift pattern into account - Respondent
relied upon use of "week" in legislation and claimed reference to
days a drafting error - Submitted paying out long service leave discretionary -
Respondent's position not assisted by terms put in writing - Reasonable to
expect large, resourced organisation such as respondent could get matters
correct - Led applicant to believe entitled to 15 and 20 days leave - However,
respondent's approach consistent with Holidays Act 2003 - Employment agreements
applied over letters - Applicant not entitled to further leave - Payment of long
service leave discretionary - Shift
supervisor
Result: Question answered in favour of respondent ; Costs reserved
Ma v Hansells (NZ) Ltd
22 Mar 2007, R A Monaghan, AA 89/07, (8 pages)
DISPUTE - Applicant absent from work on ACC for extended
period of time when respondent implemented redundancies - Entitled to
redundancy compensation of three weeks pay for each year of service -
Respondent and union agreed to calculate compensation using employees'
average weekly earnings over preceding 12 months - Applicant only worked
few weeks in that time - Average "weekly pay", and resulting
compensation, very small - Matter brought to respondent's attention
- Recalculated earnings on basis of difference between what would have
received for 40 hour week and what received from ACC - Amount greater than
under average weekly pay formula, but less than if at work - Collective
employment agreement ("CEA") did not address calculation of
"week's pay" - Electricity Corporation of New Zealand
Ltd v New Zealand Public Service Association (cited below) applied - In
similar situation Labour Court held proper measure was amount employee would
have received if employment not suspended by unpaid study leave - Court
referred to wider proposition that could not have been in contemplation of
parties that long term employee would receive no compensation - Authority
concluded CEA, together with parties' agreement regarding earnings over
preceding year, should be construed similarly - Compensation recalculated
accordingly - CEA also provided "employer shall make severance
payment to that employee, in addition to that employee's contractual
notice requirement, of 4 weeks." - Applicant argued entitled to
severance payment of four weeks pay in addition to redundancy compensation
- Respondent claimed "severance pay" no more than reference
to redundancy compensation and no additional payment made to other employees
- Submitted "4 weeks" referred to notice requirement -
Respondent's position defeated by placement of commas - Ordinary
meaning provided for severance payment of four weeks pay for redundant employees
- Not unusual for "severance" payment to mean something
different from "redundancy" payment - Applicant entitled to
"severance payment" of four weeks pay, calculated like redundancy
compensation - Monies due and owing - Interest 7.9 percent - Process
worker
Result: Questions answered in favour of applicant ; Redundancy compensation ($12,336.85) ; Severance payment ($2,284.60) ; Interest (7.9%) ; Costs reserved
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