Penalty - Employment Relations Act 2000
Clark v Sal's Trading Company Ltd
3 Dec 2007, V Campbell, AA 378/07, (3 pages)
COMPLIANCE ORDER - Applicant sought compliance with mediated record of settlement - Respondent claimed settlement signed under duress and asked for matter to be referred back to mediation - Record of settlement could not be cancelled - Compliance ordered - Missed instalments to be paid to applicant as lump sum - Authority not satisfied would be just to award interest on outstanding amount - PENALTY - Respondent claimed payments not made as not in financial position to do so - Availability of funds not relevant to whether breach of settlement wilful - No evidence respondent took steps to comply with record of settlement or explain to applicant why payments would not be made as agreed - Failures amounted to wilful breach of agreed terms - Penalty appropriate - COSTS - Applicant entitled to contribution to costs
Result:
Compliance ordered ; Penalty ($500)(Payable to applicant) ; Costs in favour of applicant ($250) ; Disbursements ($70)(Filing fee)
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Griffin v Priestley and Somerville Ltd (previously named Debt Recovery Group NZ Ltd)
31 Oct 2007, M Urlich, AA 343/07, (3 pages)
COMPLIANCE ORDER - Applicant sought compliance with record of settlement - Respondent did not dispute failure to fulfil settlement obligations - Advised liquidator to be appointed to wind up company - No evidence presented which would render compliance order of no practical benefit - Compliance ordered - PENALTY - Respondent's breach of settlement wilful - Penalty warranted - COSTS - Applicant entitled to full costs
Result:
Compliance ordered ; Penalty ($1,000)(Payable to Crown) ; Costs in favour of applicant ($2,500) ; Disbursements ($157.50)(Expenses) ; ($70)(Filing fee)
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Metcalf (Labour Inspector) v M Torok Holdings Ltd
27 Nov 2007, Y S Oldfield, AA 369/07, (3 pages)
ARREARS OF HOLIDAY PAY - Applicant Labour Inspector sought holiday pay on behalf of TC - Respondent did not dispute quantum claimed but indicated had no assets to make payment - Arrears due and owing - Interest 9 percent - PENALTY - Respondent's liability not established until it was without assets - Punishment with penalty not appropriate
Result:
Application granted (Arrears) ; Arrears of holiday pay ($6,741.62) ; Interest (9%) ; Application dismissed (Penalty) ; Disbursements in favour of applicant ($70)(Filing fee)
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Sharma v Medictronix New Zealand Ltd
18 Sep 2007, L Robinson, AA 291/07, (7 pages)
UNJUSTIFIED DISMISSAL - Redundancy - No appearance for respondent - Applicant's evidence unchallenged - Parties agreed applicant could take three months leave - Contrary to agreement, applicant not paid while on leave - On return told things at respondent "not good' and no staff paid - Respondent agreed to make some payment to applicant and said would contact him about resuming duties - Applicant not invited to resume duties - When contacted, respondent provided back dated advice making him redundant - Purported redundancy a sham - No consultation - Breached employment agreement and statutory requirement of good faith - Dismissal unjustified - ARREARS OF WAGES - Applicant entitled to commission not paid during employment - Interest 10 percent - GOOD FAITH - PENALTY - Applicant sought penalty for respondent's failure to act in good faith - Respondent had instilled in applicant expectation would resume duties - Attempted to revise situation by making him redundant from commencement of discussions with him - Conduct demonstratively dishonest, in bad faith, and undermined applicant's employment agreement - Penalty warranted to underscore policy objectives of Employment Relations Act 2000 and denounce respondent's conduct - Sales and marketing manager
Result:
Application granted ; Reimbursement of lost wages ($6,057.70) ; Compensation for humiliation etc ($8,000) ; Arrears of wages ($10,451.36) ; Interest (10%) ; Penalty ($3,000)(Payable to Crown) ; No order for costs
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Taljaard (Labour Inspector) v Jatcom Printing Ltd t/a The Pukekohe Printing Works
30 Oct 2007, L Robinson, AA 341/07, (5 pages)
ARREARS OF HOLIDAY PAY - Applicant Labour Inspector sought arrears of holiday pay on behalf of AP - Respondent did not file statement in reply but granted leave to defend application at investigation meeting - Respondent failed to produce wage and time records when requested - Information it did provide inadequate and unreliable - Respondent failed to keep and maintain wage and time record as required - AP's evidence of arrears accepted - Arrears due and owing - Interest 10 percent - PENALTY - Penalty for failure to provide wage records warranted - Respondent's evidence of precarious financial position accepted - Penalty to be paid by instalments
Result:
Application granted ; Arrears of holiday pay ($912) ; Interest (10%) ; Penalty ($1,000)(Payable to Crown) ; ($1,000)(Payable to applicant) ; Disbursements in favour of applicant ($70)
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Taylor v Mai Media Ltd
21 Nov 2007, M Urlich, AA 365/07, (4 pages)
COMPLIANCE ORDER - Applicant sought compliance with record of settlement and interest on outstanding amount - Respondent failed to pay agreed sum by agreed date - Payment made after present application lodged with Authority - No grounds to make compliance order - No sum for judgment given, so no basis upon which Authority could order interest - PENALTY - Respondent claimed failed to pay as expected funds unavailable and number of unexpected financial difficulties arose - Availability of funds not relevant to whether breach of agreement amounted to wilful breach - No evidence respondent took any steps to pay agreed sum, or explain to applicant why it would not be paid on time - Failures amounted to wilful breach of agreed terms - Penalty of $500 appropriate - COSTS - Less than one day investigation meeting - Applicant entitled to $1,000 contribution to costs
Result:
Application dismissed (Compliance, Interest) ; Application granted (Penalty) ; Penalty ($500)(Payable to applicant) ; Costs in favour of applicant ($1,000) ; Disbursements ($70)
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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
