Dispute - Employment Relations Act 2000
Best & Ors v TNL Group Ltd
4 Jul 2007, P Montgomery, CA 74/07, (7 pages)
DISPUTE - Application of collective employment agreement ("CEA") - Eligibility for shift allowances - Respondent argued applicants not shift workers and not entitled to allowance - Applicants worked same hours each week, not rotating shifts - Whether driver of tractor unit worked shifts, or whether tractor unit worked shifts when deployed on different tasks during night or day hours - Whether work had to be same at day and night for there to be a "shift" - Copies of earlier agreements between respondent and union showed payments once made on per vehicle basis - Applicants used term "shift truck" to describe tractors that worked day and night hours - Colloquial term understandable - However, different matter to import from description an obligation on respondent to pay whoever drove tractor - Upon close reading of documents clear rotation established by roster critical to definition of shift and specific change made to pay employees not vehicles - Only employees working rotating hours eligible for shift allowance - Applicants not entitled to shift allowance
Result:
Question answered in favour of respondent ; Costs reserved
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Chiu v John Gilbert & Company Ltd
12 Nov 2007, V Campbell, AA 349/07, (2 pages)
DISPUTE - Applicant's sought payment of meal allowance as provided for in employment agreement - Evidence provided by applicant inadequate to found claim - Claim failed
Result:
Question answered in favour of respondent ; Costs reserved
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New Zealand Amalgamated Engineering Printing & Manufacturing Union (Inc) v Solid Energy New Zealand Ltd
5 Oct 2007, J Scott, AA 310/07, (15 pages)
DISPUTE - Applicant claimed non-striking employees unlawfully suspended and owed wages - Respondent submitted suspended employees as unable to provide normal work - However, admitted limited work could have been found for non-striking employees, but would have meant going to lot of trouble to find small amount of work for small number of people - Respondent argued would be penalised by paying workers to do work not normally performed by them and would be paying them after strike when they did not need to do all work they normally performed - Respondent required to assess what normal work available and if enough for one, some, or all workers engaged in that normal work - Only then could respondent reasonably say insufficient work to justify continuing to offer work to non-striking employees - Authority not satisfied respondent unable to provide non-striking employees work normally performed by them - Immaterial that upon resuming work some employees would be idle because work they would normally do following strike would not be available - Suspension of non-striking employees illegal - Parties directed back to mediation to resolve issue of lost remuneration - Six other employees lawfully suspended for striking, despite claim they did not intend to refuse work until next day - Were parties to strike that had already begun - While unusual for workers to be suspended orally, nothing to require notice in writing at time suspension affected - Mine workers
Result:
Question answered in favour of applicant ; Parties directed to mediation ; Costs reserved
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Taylor v Afu Finance Ltd
19 Sep 2007, J Crichton, CA 114/07, (6 pages)
JURISDICTION - Whether employee or independent contractor - Respondent claimed all workers contractors not employees - Applicant denied signing contractor agreement when started work - Application form labelled "for contractors" not determinative and applicant did not understand what signing - Unfair for her to be taken advantage of in situation - Respondent directed applicant's days and places of work, and no invoices submitted - Applicant an employee - UNJUSTIFIED DISMISSAL - Applicant given letter terminating engagement with seven days notice - Substantively and procedurally unfair - Dismissal unjustified - Hairdresser
Result:
Application granted ; Reimbursement of lost wages ($6,500) ; Compensation for humiliation etc ($4,000) ; Costs reserved
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Turner v Pacifica Seafoods (Christchurch) Ltd
25 May 2007, H Doyle, CA 57/07, (16 pages)
DISPUTE - GOOD FAITH - Entitlement to notice of termination and redundancy payment - Employment status - Respondent argued applicant's status changed to casual during employment due to downturn in business - Employment agreement stated days of work "as required" but also contained provisions inconsistent with casual employment - Applicant did not recall restructuring process and or consider himself casual employee - Regular work pattern and clear expectation of ongoing employment - Applicant permanent employee - Employment terminated one day after advised business sold - Respondent claimed sale unplanned and complete confidentiality required for commercial reasons - Notice given to applicant not reasonable, however, Authority accepted applicant not entitled to monetary compensation as on unpaid leave due to injury - Applicant also sought redundancy compensation - Respondent argued no contractual entitlement to payment - Authority unable to fix new terms of employment - However, as applicant's redundancy entitlement assessed on mistaken basis he was casual employee, in good faith, respondent should reassess entitlements - PENALTY - In circumstances where respondent unable to give employees advance warning of sale, discussion about entitlements even more important in terms of good faith process - However, degree of seriousness required to warrant penalty not reached - Good faith issues regarding absence of consultation and notice should form part of respondent's reassessment of entitlements - ARREARS OF HOLIDAY PAY - Except for first week ACC compensation payable by employer, no payments received under Injury Prevention, Rehabilitation and Compensation Act 2001 to be taken into account when calculating holiday pay - Public holidays that fell during unpaid leave would not have been otherwise working day as applicant not available to work - Calculation referred to Labour Inspector - Leave reserved on issues relating to payment of sick leave
Result:
Questions answered ; Orders accordingly ; Costs reserved
