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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
Henning (Labour Inspector) v Vizual Photomedia Ltd
9 Mar 2009, J Crichton, CA 26/09, (4 pages)
COMPLIANCE ORDER - No appearance for respondent - In earlier determination Authority found no inherent power to simply enforce Labour Inspector's assessment of moneys owed to employee - Application brought as compliance order not demand notice as compliance sought under both Holidays Act 2003 ("HA") and Wages Protection Act 1983 ("WPA") - Section 224 ERA conferred power on labour inspectorate to generate demand notices in respect of enforcement of HA and Minimum Wage Act but not WPA - Authority satisfied wages due and owing under WPA - Compliance ordered - ARREARS OF HOLIDAY PAY - Authority satisfied applicant made out arrears of holiday pay claims under ERA - PENALTY - Applicant sought penalty for breaches of WPA and HA - Authority found penalty appropriate under s13 WPA - Found respondent had ample opportunity to make payment or make arrangements with applicant but failed to do so - Found penalties also appropriate for breaches of s23 and 49 HA given respondents inordinate delay in dealing with matter appropriately
Result: Compliance ordered ; Arrears of wages ($996.92) ; Arrears of holiday pay ($1,435.15) ; Penalty ($1000 breach of HA) ($2000 breach of WPA) (Payable to applicant) ; Costs to lie where they fall
Macdonald v Gifkins t/a Grey Lynn Veterinary Clinic and Anor
22 Feb 2008, R Arthur, AA 59/08, (14 pages)
PRACTICE AND PROCEDURE - Identity of employer - First respondent sole director of second respondent - Second respondent limited liability company - No appearance for respondents - In statement in reply respondents argued no employment relationship between applicant and first respondent - Authority found no mention in employment agreement ("EA") of limited liability company - Authority accepted applicant's evidence that no reference to company during employment - Found legal identity of second respondent never disclosed to applicant - Correct employer first respondent not second respondent - UNJUSTIFIED DISMISSAL - Applicant discussed concerns with first respondent - That evening, applicant sent first respondent text message saying was not up to work next day - Next morning, first respondent called applicant to ask if coming to work - After brief discussion, first respondent said "we have hit a wall then ... we need to part ways" - Applicant emailed first respondent to ask if was dismissed - When received no reply, applicant went to work - First respondent had changed locks - Applicant informed first respondent that taking legal advice - Third party ("L") called applicant claiming told to settle matters on behalf of first respondent - Applicant made appointment to collect personal property from first respondent's premises - L cancelled appointment - Applicant contacted police to arrange collection of property - Applicant served with trespass notice - Authority found employment terminated when applicant arrived at workplace to find locks changed without notice - Found also more likely than not that words of first respondent about parting ways constituted words of dismissal - Found taken together actions clearly intended to send applicant away and amounted to dismissal - Found first respondent failed to meet obligations to address applicant's concerns in manner consistent with good faith obligations - Found instead responded in unfair and unreasonable manner by dismissing applicant - Dismissal unjustified - REMEDIES - Applicant on sickness benefit - Applicant had not pursued some employment options due to personal or moral views about workplaces - One month's "time out" in Australia not included in lost wages - Wage and time records not provided - Authority relied on applicant's assessment of average wages - Sixteen weeks lost wages appropriate - Earnings from applicant's part time temporary employment to be deducted from lost wages award - Authority found applicant humiliated when locked out in front of client and as peers in small industry believed dismissed for misconduct - Found compounded by first respondent's petty behaviour in failing to return applicant's personal property and instigating trespass order - Authority found applicant suffered medical problems connected to circumstances of dismissal - Compensation award appropriate - Applicant sought return of personal property - Authority found inconsistent with mutual obligation of trust, confidence and fair dealing to refuse to make reasonable arrangements to return property - Found if return not arranged within two weeks of determination, compensation award to be increased by $2,000, as compensation for loss of benefit - Authority found respondent promised applicant benefit of attendance at overseas conference as personal development - Authority found loss of opportunity of attend constituted loss of benefit - Authority awarded sum to mark loss - No contributory conduct - ARREARS OF HOLIDAY PAY - As respondent provided no wage and leave records, Authority relied on applicant's evidence to assess holiday pay - Authority found holiday pay owing - PENALTY - Authority found remedies awarded satisfactorily dealt with issues of personal property and holiday pay - Authority found first respondent showed no good reason for failure to provide records - Penalty payable to Crown appropriate - Veterinary nurse
Result: Application granted (dismissal) ; Reimbursement of lost wages (16 weeks)($10,640) ; Compensation for humiliation etc ($8,000) ; Arrears of holiday pay ($3,137) ; Loss of chance ($1,000)(personal development conference) ; Orders made (return of personal property)(failing return, $2,000 to be added to compensation) ; Penalty ($500)(Payable to Crown) ; Costs reserved
Pownall v Fairbrothers Industries Ltd
29 Feb 2008, Y S Oldfield, AA 69/08, (8 pages)
ARREARS OF HOLIDAY PAY - Parties negotiated settlement agreement when applicant's employment terminated for redundancy - Applicant's pay in lieu of notice paid in instalments after termination of employment due to respondent's financial difficulties - Applicant claimed not paid outstanding holiday pay on termination of employment - Claimed 8 percent holiday pay on earnings up to termination date as well as on pay in lieu of notice - Respondent did not dispute obligation to pay outstanding holiday pay but argued only payable on wages up to termination date - Respondent argued because payment of pay in lieu of notice deferred until after end of employment not part of final pay - Also argued as settlement "full and final" applicant not entitled to claim 8 percent on pay in lieu of notice - Authority found respondent's argument inconsistent and unsustainable - Found if holiday pay obligations remained at all, remained in entirety - As respondent conceded obligation to pay settlement agreement did not cover holiday pay - Authority found pay in lieu of notice gross earnings for purposes of calculation of holiday pay - Found employment agreement specifically required three months' notice or pay in lieu of notice - Therefore payment in lieu of notice payment employer required to pay employee under employment agreement in terms of s14 Holidays Act 2003 ("HA") - Authority compared what applicant paid with what should have been paid to determine if amount of holiday pay outstanding - As redundancy occurred part way through second year of employment Authority calculated holiday pay entitlements by applying s24 and s25 HA and totalling them as provided for in s26 HA - Authority found applicant paid less than should have been - Respondent to pay $1,094.53 arrears of holiday pay - General Manager
Result: Application granted ; Arrears of holiday pay ($1,094.53) ; No order for costs
Stein v Garrard's (NZ) Ltd
17 Mar 2008, R A Monaghan, AA 94/08, (6 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant's partner ("X") also worked for respondent - Respondent became concerned about X's activities following investigation into decline in business - Following X's resignation respondent identified more serious concerns about X's activities - While applicant on maternity leave respondent asked about knowledge of X's activities - Applicant advised unaware of some activities and unaware respondent did not know of others - Respondent referred several matters to police - On applicant's return to work advised to go home and wait for further contact as respondent unsure of applicant's involvement with X's activities - Respondent then advised applicant not prepared to resume applicant's employment until police enquiry and any legal proceedings completed - Applicant advised respondent would not return to work and raised personal grievance - Authority found suspension breached clause in employment agreement in number of respects - Found breaches so far reaching in effect that respondent's actions repudiatory of employment agreement - Found applicant's indication would not return to work a response to respondent's action - Applicant did not resign, was dismissed - Respondent had not finished investigation, so unable to conclude whether applicant guilty of misconduct - Dismissal unjustified - Remedies - No contributory conduct - Applicant obtained employment five weeks after dismissal - Reimbursement of five weeks wages awarded - Authority found relatively little evidence of injury to feelings - Modest award appropriate - $4,000 compensation awarded - ARREARS OF HOLIDAY PAY AND OTHER MONIES - Respondent acknowledged holiday pay owing - Respondent ordered to pay outstanding holiday pay - Applicant paid road user charges from personal funds instead of respondent's - Applicant agreed to deduction for chainsaw X obtained - Respondent ordered to reimburse applicant $204.93 outstanding - Customer Service Representative
Result: Application granted ; Reimbursement of lost wages ($3,365.38) ; Arrears of holiday pay ($3,651.02) ; Compensation for humiliation etc ($4,000) ; Reimbursement for expenses ($204.93)(Road user charges) ; Costs reserved
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