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Bath-Taylor v Vergo Ltd and Anor
24 Apr 2008, G J Wood, AA 158/08, (3 pages)
ARREARS OF WAGES AND HOLIDAY PAY - No appearance for respondents - Applicant's unchallenged evidence accepted - Applicant worked at businesses owned by respondents - Applicant paid intermittently as businesses struggling - After first respondent's business closed applicant received no wages, though still performing work for second respondent - Applicant informed second respondent to be sold and employment terminated - Despite extensive efforts applicant unable to obtain outstanding wages and holiday pay from respondents - Authority satisfied arrears of wages and holiday pay owing - Hospitality industry worker
Result: Application granted ; Arrears of wages and holiday pay ($3,078) ; Disbursements in favour of applicant ($70)(Filing fee)
Cameron v Axo Shredders Ltd
20 Mar 2009, P R Stapp, WA 32/09, (12 pages)
UNJUSTIFIED DISADVANTAGE - Applicant employed by respondent to work in United Kingdom ("UK") - After entering UK applicant worked without work visa - Applicant deported back to New Zealand ("NZ") - Applicant claimed suffered unjustified disadvantage due to deportation and health and safety issues in UK - Dispute between parties as to whose responsibility it was to obtain work visa ("visa") - Employment agreement ("EA") made no provision for obtaining work visa - Authority found both parties to take responsibility for failure to obtain visa - Applicant worked and accepted pay when on visitor's visa and took no direct action to obtain visa - Respondent condoned situation by paying applicant and acting as if visa obtained - Authority found respondent's failure to ensure applicant had visa breach of good faith and mutual obligations under EA - Found applicant also had responsibility to ensure visa obtained - Found no deliberate misrepresentation by respondent - Applicant had many issues with workplace conditions in UK - Authority found applicant not established vehicle, accommodation, and work premises unsafe and unhealthy, and that respondent breached general health and safety obligations in EA - Respondent produced sufficient evidence met obligation of taking all practicable steps to provide safe and healthy work environment - PENALTY - Authority found respondent's breach of obligation to act in good faith did not warrant penalty - No deliberate or wilful misrepresentation by respondent over work arrangements - UNJUSTIFIED DISMISSAL- Applicant claimed took four days leave on return to NZ and later told by respondent not to return to work - Respondent claimed applicant requested indefinite leave of absence - Authority found applicant's employment ended when took leave of absence and accepted final pay - Authority agreed applicant accepted final pay as in financial difficulty - Found final payout not necessarily proof of dismissal initiated by employer - Found no actual resignation or dismissal as such - No written details of any dismissal from either party - ARREARS OF WAGES, HOLIDAY PAY AND OTHER MONIES - At investigation meeting parties agreed that applicant's claim for alleged underpayment of salary and respondent's counterclaim for recovery of monies be referred to independent auditor - Parties to be bound by outcome of audit - Any recovery and enforcement remained matter for Authority - Authority found applicant's claim for payment of commission not established as applicant unable to prove amount owed, if any - Applicant claimed unpaid leave on basis of hours worked in excess of contracted hours - Authority found under terms of employment agreement all hours fully compensated for by salary - Time in lieu provided for on call work or work on public holidays - Insufficient evidence provided of hours worked or statutory holidays involved - Claim dismissed - Applicant unable to show how respondent's holiday pay records incorrect - Application for unpaid holiday pay dismissed - No contractual basis for applicant to claim replacement of clothing and tools - Claim dismissed - Installation engineer
Result: Application dismissed ; Costs reserved
Goodall v Simes Ltd
3 Dec 2008, J Crichton, CA 181/08, (12 pages)
JURISDICTION - Applicant managing director of real estate company ("Company") - Applicant initiated discussions with respondent which culminated in agreement for sale and purchase of Company by respondent - Term of agreement for sale and purchase that respondent employ applicant as manager residential real estate sales - No written employment agreement - Applicant met with respondent's chief executive ("H") - H claimed meeting was to discuss applicant's impending employment - Applicant believed already been in employment for one week - At meeting applicant disclosed made error in disclosing material information to H in relation to financial performance of Company - Error showed Company making profit, when actually making loss - H claimed applicant indicated would understand H lost trust and confidence in applicant and understood no place for applicant with respondent if that was what respondent wanted - Applicant claimed no termination of employment relationship at meeting - Series of meetings followed which focused on commercial arrangement between parties - Applicant contended effectively dismissed from employment at last meeting held - H denied dismissal occurred at last meeting as employment relationship at end, if ever started - Authority found employment relationship between parties - Satisfied law allowed Authority to conclude was intention by both parties to be bound, based on factual matrix - Authority found clear applicant worked in role for one week - Authority preferred respondent's evidence as to what happened when applicant revealed misrepresentation - Found parties agreed applicant's employment would terminate at that point - Having found employment relationship, Authority had jurisdiction to deal with applicant's personal grievance claim - However, in finding employment relationship ended when it did, applicant's personal grievance claim raised outside 90 day limit - Respondent denied consent for grievance to be raised out of time - Applicant not applied to raise claim out of time - Authority unable to take personal grievance claim any further - ARREARS OF WAGES - As applicant employed for one week, entitled to one week's pay - Insufficient evidence for Authority to determine whether bonus payment appropriate - Respondent to also pay one week's salary in lieu of notice period - Manager
Result: Applications granted ; Arrears of wages (one week) ; Reimbursement of lost wages (one weeks' pay in lieu of notice)
Potter v Australian Consolidated Press NZ Ltd
11 Mar 2008, V Campbell, AA 82/08, (8 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by transfer of clients from applicant to co-worker, affecting commission - Also claimed unjustifiably disadvantaged by disciplinary process regarding performance - Applicant claimed respondent's Corporate Sales Manager ("S") misled applicant by advising received client complaints when in fact no complaints made - Respondent argued business strategy changed commission structure - Authority found clients transferred due to adjustment of client lists - Found this discussed with applicant - Found removal of clients from commission paid employee was action which could lead to disadvantage - However, found removal of clients to allow applicant opportunity to expand business in other areas did not lead to disadvantage - Applicant conceded income increased despite commission restructure - Authority found no unjustified disadvantage regarding reallocation of clients - Authority found S had genuine concerns about applicant's behaviour - Found when informal approaches did not bring about changes, S implemented formal disciplinary process - Authority did not accept S deceptive or misleading when raised customer complaints with applicant - Found applicant only cast doubt on one of four alleged customer complaints - Found no further disciplinary action taken as result of disciplinary interview with applicant - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Constructive dismissal - Five days after respondent advised applicant that no further disciplinary action to be taken, applicant resigned - On receipt of resignation, respondent replied to applicant, attempting to arrange meeting - Authority satisfied respondent did not follow course of conduct with intention of coercing applicant to resign - Found S addressed performance issues in fair and reasonable manner - Found equally no evidence to support argument that respondent breached duty to such degree that applicant had no option but to resign - Found applicant reluctant to follow expected processes and reacted negatively when S raised this - No constructive dismissal - ARREARS OF WAGES - Arrears of commission - Respondent argued applicant's calculations of commission payments included advertisements placed by Australian agents, not applicant - Authority found applicant not entitled to commissions for bookings made by Australian bookers, as specified in updated clause of employment agreement - Found no arrears of commission owing - Found respondent significantly overpaid applicant - Respondent advised would not require applicant repay overpayment - Commercial advertising executive
Result: Applications dismissed ; Costs reserved
Riddell v Stanley Road Ltd
6 Mar 2008, G J Wood, WA 26/08, (8 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Difficult relationship between applicant and newly employed general manager ("B") - Inappropriate sexual liaison between applicant and B heightened tension - B and applicant discussed applicant's further training and assistance through increased staffing - Authority found applicant and B discussed applicant's potential, not guaranteed, promotion to management - Applicant claimed assaulted by B - No formal complaint to respondent - Respondent heard of allegation and made inquiries - B denied allegation - Respondent did not take matter further - Authority found insufficient evidence, such as corroboration, to prove serious allegation in fact occurred - Respondent received complaint from representative of large number of respondent's customers - B held meeting with applicant about complaint - Applicant did not accept complaint and said was overworked - Authority accepted B said something needed to be done to improve sales - Authority did not accept B said intended to reduce staff or applicant was running café into ground - Following day, applicant attempted to collect personal items from café, but was called to B's office instead - Applicant left resignation letter on B's desk, declining to discuss - Applicant took sick leave then raised grievance - Authority found respondent not trying to obtain applicant's resignation, especially as was considering promotion to management - Authority did not accept applicant seriously overworked as timesheets showed worked 44 hours per week - Found meeting to discuss complaint not disciplinary meeting, as no prospect of warning or dismissal - Employer entitled to conduct preliminary investigation into complaints before formal disciplinary procedure invoked - Found appropriate for B to obtain applicant's views about complaint before deciding what action to take, if any - Found although B's approach lacked subtlety, no breach of duty of sufficient seriousness to make it foreseeable to respondent that applicant would not be prepared to work under prevailing conditions - Authority noted not appropriate for Authority to intervene where problem is poor management style, unless behaviour constitutes breach of duty - No unjustified dismissal - ARREARS OF WAGES - Applicant claimed wages unlawfully withheld when resigned - Authority found under employment agreement respondent entitled to deduct one week's pay as applicant did not work out notice period - RECOVERY OF MONIES - Authority found respondent ignored applicant's reasonable requests for return of personal property - Authority ordered respondent to pay approximate dollar value of property withheld - Barista
Result: Application dismissed (dismissal)(arrears of wages) ; Application granted (recovery of monies) ; Recovery of personal property ($350) ; Costs reserved
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