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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
Liley v Fashion Traders Group Ltd
26 May 2008, R Arthur, AA 189/08, (3 pages)
COMPLIANCE ORDER - Applicant sought compliance with mediated settlement - No appearance for respondent - Authority satisfied respondent had not complied with settlement - Compliance ordered - PENALTY - Authority found penalty appropriate not only to mark respondent's blatant breach of agreement but to act as deterrent to parties who entered settlement agreements but failed to honour them - Respondent's withholding of payment appeared deliberate and for no good reason - Penalty of $1,000 appropriate, split between applicant and Crown - COSTS - Applicant entitled to reasonable contribution to costs - Costs of $400 awarded - Respondent warned of consequences of failure to comply with Authority's orders
Result: Compliance ordered ; Penalty ($1,000)($500 payable to Crown)($500 payable to applicant) ; Costs in favour of applicant ($400) ; Disbursements in favour of applicant ($70)(Filing fee)
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
Pollock v MacDonald (Statutory Manager, Aranui High School)
14 Feb 2008, H Doyle, CA 12/08, (23 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed respondent failed to consider application for medical retirement - Respondent claimed applicant never formally applied for retirement, alternatively, argued did not meet requirements of Collective Employment Agreement ("CEA") - Applicant claimed parties agreed to full and final settlement, however, applicant able to bring claim regarding rejection of application for retirement - Authority found evidence supported conclusion that was application for retirement under CEA - Authority satisfied applicant applied for retirement notwithstanding made part of settlement proposal - Respondent not satisfied with medical certificate provided with application - Authority found time restraint not justifiable reason for failing to obtain second certificate or communicate concerns to applicant - Applicant advised retirement would not be funded by Ministry of Education - Found retirement rejected by Ministry official who concluded application irregular on basis of unsubstantiated information provided by respondent - Source of funding irrelevant consideration by respondent but significant factor in applicant's decision making - Authority found respondent breached CEA by rejecting application without considering whether accorded with CEA - Unjustified disadvantage - REMEDIES - Medical opinion supported conclusion applicant lost real chance of retirement - Authority assessed applicant's chance of retirement and receiving benefit at 50 percent - Retirement benefit under CEA different to compensatory payment under Employment Relations Act 2000 - Applicant entitled to 50 percent of retirement benefit, less two months notice received under terms of settlement - $5000 compensation for humiliation appropriate - PENALTY - Applicant claimed respondent breached confidentiality provisions of settlement agreement by commenting on payment of notice period - Authority not prepared to award penalty in circumstances where reporter saw respondent after applicant disclosed resignation - Further compliance order unnecessary where part of settlement disclosed in determination details and prohibition of publication attached to other parts - Principal
Result: Application granted ; Compensation ($5,000) ; Compensation (loss of chance)($51,668.50) ; Costs reserved
Wright v Hevila Pak Ltd
11 Mar 2008, R A Monaghan, AA 86/08, (8 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Abandonment - Applicant claimed redundancy engineered to get rid of applicant due to conflict between applicant and chairman of board of directors ("F") - Respondent argued applicant abandoned employment - F advised staff in individual letters that business not performing well, was reviewing operations and would arrange individual meetings - Applicant advised F did not wish to attend meeting - Applicant attended later meeting with F to discuss outcome of review - F advised would recommend at AGM that applicant's position be made redundant - Applicant responded "good luck" - Applicant present at AGM where meeting resolved to recommend to respondent's board that applicant's position redundant - Applicant asked if that meant he no longer had job - F replied "probably" but another shareholder replied not final decision - Applicant began preparing to leave workplace - Authority preferred F's evidence that F explained that applicant still employee and expected to carry out work until board made decision on redundancy - Applicant left, not attending final meeting when decision to discontinue position finally made - Authority had reservations about F's approach, but accepted valid reasons for considering future of applicant's position - Found applicant's response to F's attempted review unwise and not in own best interests - Found outcome of AGM not applicant's dismissal - Position remained until directors resolved to discontinue it - Found unclear what final outcome would have been because applicant pre-empted any action and consultation about future employment options - Found departure too premature to allow finding that treatment was such that applicant entitled to reach conclusion that was dismissed - Applicant's departure pre-empted any termination that may have been imposed after director's meeting and subsequent consultation with applicant - Therefore no issue of justification arose - No dismissal - BREACH OF CONTRACT - PENALTY - Counterclaim - Respondent argued applicant breached employment agreement ("EA") by failing to give reasonable notice period and carry out duties while EA remained in force - Respondent sought penalty for breaches - Authority found applicant breached EA in failing to provide notice of termination as was obliged to - Authority declined to exercise discretion to award penalty - Found applicant already penalised by losing employment - Penalty declined - Operations manager
Result: Application dismissed (dismissal) ; Application granted (breach of contract)(counterclaim) ; Application dismissed (penalty)(counterclaim) ; Costs reserved
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