Personal Grievance - Dismissal - Employment Relations Act 2000
Belich v Rusty Pelican Ltd
29 Mar 2007, R Arthur, AA 97/07, (11 pages)
JURISDICTION - Whether employee or independent contractor - All shares in respondent company ("RPL") owned by R&R through joint share and trust - Applicant and husband discussed buying RPL - Applicant and husband unable to raise required funds to buy business outright - Applicant, husband and two others ("G") formed 3PL Ltd in order to buy 45% of shares in RPL - Applicant, husband and G's ("Group B") to work in business - Arrangement formalised ("shareholders arrangement") - R&R to continue as majority shareholders ("Group A") - Applicant, husband and G to own one share jointly with another 499 shares owned through 3PK Ltd - Transfer of shares not completed and registered until later date - R&R left for Australia and Group B became responsible for day to day operations - Applicant accepted work for company had changed&R became concerned about financial state of busi&R had meeting &R instructed business consultant ("SAS") to act on RPL's behalf in all business and financial matters - SAS instructed to take whatever steps necessary to ensure continuity - Two companies incorporated to purchase assets of RPL - R&R told applicant could no longer have access to company accounts - Applicant an employee - Applicant remained responsible to and was directed &R - Inference from actions of parties applicants employment intended to be continuous - Authority found provisions of shareholders agreement amounted to contracting out of Employment Relations Act - Indemnity provisions of shareholders agreement illegal and unenforceable - UNJUSTIFIED DISMISSAL - Provision where Group B shareholders to ind&R to be treated as removed from document -Applicant suspended under provisions of shareholder agreement - Insufficient evidence of financial information being compromised to justify suspension - Did not turn minds to applicants rights as employee - Concerns about financial situation not fairly put to applicant - Indefinite suspension made unjustified disadvantage an unjustified dismissal
Result:
Application granted ; Reimbursement of lost wages ($8017.33) ; Compensation for humiliation etc ($6000) ; Costs reserved
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Lupi v We Want You Motor Group Ltd
16 May 2007, D King, AA 148/07, (4 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant transferred to new location - Alleged promised would be assistant to General Manager ("GM") - Alleged hostility by GM, demoted to salesman, and managerial responsibilities removed - GM dismissed by Director and went to work for competitor - Applicant raised concerns about perceived demotion and other issues - Director had assumed applicant was happy as had not raised concerns previously - At end of meeting to discuss issues, applicant threatened to take respondent to court - Applicant's behaviour deteriorated following meeting, given formal written warning - Applicant requested mediation but then resigned and went to work for same competitor as GM - Applicant solicited former colleagues to work at competitor - Authority did not accept applicant's account of transfer of location or promise of position - Given subsequent conduct could not accept evidence of poor relationship with GM - No dismissal or disadvantage - ARREARS OF WAGES - Claimed owed commission and bonus - Respondent had practice of lending potential buyers deposit to obtain finance, commission not paid to salesperson until loan recouped - Agreement did not provide commission could be withheld on that basis - Any payments withheld owing - Bonus payments discretionary - No bonus owed - Employees charged penalty fee if failed to lock up - Deductions unauthorised, to be refunded - Salesman
Result:
Applications dismissed (Unjustified dismissal, unjustified disadvantage) ; Application granted (Arrears of wages) ; Arrears of wages (Quantum to be determined) ; Costs reserved
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McLeod v Interspace Airport Advertising New Zealand Ltd
14 Jun 2007, J Crichton, CA 61/07, (7 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - After altercation, applicant "shooed" out of meeting by co-worker - Applicant took this as evidence of being "sent away" and claimed dismissed - Respondent considered applicant resigned, based on email she had sent to senior manager and earlier indication she intended to resign - Co-worker claimed told applicant if she should leave meeting and go back to desk and did not direct applicant to leave building by word or gesture - Co-worker had no authority of disciplinary or employment nature in respect of applicant and no power to dismiss her - Not reasonable for applicant to believe "sent away" by co-worker's "shooing" motion - Only message subsequent email could communicate was applicant's intention to end employment - Consistent with earlier indication she intended to resign, and behaviour as left premises - Case not an example of kind where employer ought to give employee "cooling off" period - Applicant resigned - No personal grievance - Sales consultant
Result:
Application dismissed ; Costs reserved
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McTaggart v N & M Witehira Ltd
25 Sep 2007, D King, AA 297/07, (6 pages)
UNJUSTIFIED DISMISSAL - Applicant dismissed as would not agree to reduction in hourly rate - Respondent also alleged performance issues - No written employment agreement - Applicant employed on understanding high hourly pay rate conditional on generating agreed level of turnover - Parties agreed to review arrangement after three months - After three months, original conditions rolled over for another three months - Applicant did not achieved agreed turnover - Second review meeting held and applicant given employment agreement containing one month probationary period and reduced hourly rate - Applicant did not accept changes - Declined subsequent offer to remain on higher rate as manager and made counter offer - Respondent found counter offer completely unsatisfactory and dismissed applicant - While applicant's original pay rate conditional upon turnover, no agreement as to consequences if condition not satisfied, only agreed to review rate - Respondent not entitled to dismiss applicant because did not agree to reduced rate - Applicant not given notice employment at risk - Manner of dismissal unfair - Dismissal unjustified - Remedies - Applicant given time to supply further medical evidence in support of claim for lost wages - Remedies reserved - ARREARS OF WAGES AND HOLIDAY PAY - Applicant claimed final pay incorrect and respondent made him change rostered days to avoid working on public holidays - Complained denied opportunity to be paid time and half - Arrears due and owing - Respondent overpaid holiday pay - Overpayment to be deducted from arrears - Hairdresser
Result:
Application granted ; Remedies for unjustified dismissal reserved ; Orders accordingly ; Arrears of wages ($80) ; Arrears of holiday pay ($138.68) ; Costs reserved
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Murray v Godley House Ltd
20 Nov 2007, P Montgomery, CA 141/07, (5 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Respondent previously called meeting to discuss applicant's performance - Parties agreed on steps to help next big night but to little avail - Second meeting held and applicant alleged dismissed - Respondent claimed applicant resigned before issues could be discussed - Credibility finding in favour of respondent - Applicant resigned - No personal grievance - COSTS - Applicant in receipt of legal aid - But for legal aid, Authority would have awarded $1,700 costs to respondent - Respondent's costs award limited to $50
Result:
Application dismissed ; Costs in favour of respondent ($50)
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Patterson v Avalon Ltd t/a Rosebank Winery
31 Aug 2007, P Cheyne, CA 108/07, (5 pages)
UNJUSTIFIED DISMISSED - No appearance by respondent - Applicant criticised after used telephone at work - Later suspended and respondent indicated it did not want her back at work - Applicant raised grievances in relation to suspension and apparent dismissal - Respondent's response did not attempt to say applicant not dismissed - Circumstances amounted to sending away - Dismissal unjustified - Suspension not dealt with separately, although also unjustified - Remedies - Authority accepted applicant probably more affected by events than others might be because of pre-existing health problem - ARREARS OF HOLIDAY PAY - Applicant worked briefly for respondent in 1999 before commencing regular employment following year - Discontinuous periods of employment - First obligation to pay holiday pay arose when first period of employment ended - Claim relating to first period of employment unsuccessful as recovery proceedings not initiated within six year limitation period - Holiday pay due and owing for second period of employment, including alternative holidays and time and a half payments - Interest 10 percent - COSTS - Length of investigation meeting not specified - Costs in applicant's favour
Result:
Application granted ; Reimbursement of lost wages ($1,460.85) ; Compensation for humiliation etc ($10,000) ; Arrears of holiday pay ($2,153.99) ; Interest (10%) ; Costs in favour of applicant ($750)
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Richmond v Armstrong Alarms Ltd
21 Nov 2007, M Urlich, AA 366/07, (3 pages)
UNJUSTIFIED DISMISSAL - Respondent claimed applicant absent for five and a half months without properly notifying it of absence - Understood applicant had moved onto other employment and claimed he refused offer to discuss situation - Submitted this amounted to resignation - Applicant had provided respondent with medical certificates covering absences - Contacted respondent when received medical clearance - Respondent told him did not have workload to keep him employed - Applicant declined to meet and respondent agreed to his request for two weeks pay as notice - Payment not made - Sending away - No opportunity to comment - Long absence due to illness did not end employment relationship - Dismissal unjustified - Remedies - Entitled to be paid for agreed notice period - Leave reserved on holiday pay issue
Result:
Application granted ; Notice period (Two weeks) ; Compensation for humiliation etc ($7,000) ; Costs reserved
