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Barr v P and L Byrne Farming Partnership
31 Mar 2008, H Doyle, CA 31/08, (6 pages)
PRACTICE AND PROCEDURE - Identity of employer - Parties agreed during directions conference respondent correct employer - JURISDICTION - Applicant employed for season by sharemilker ("L") - Applicant also job shared with husband ("H") - No additional cost to respondent when applicant performed H's duties - L advised applicant and H that leaving farm and therefore no longer employed by L - Respondent offered position of lower order sharemilker on farm by then owners - Applicant claimed was person intending to work for respondent - Applicant claimed employment did not go ahead and unjustifiably dismissed when H dismissed - Applicant claimed felt employment treated as added on to H - Respondent argued job offer only made to applicant on condition employment agreement signed - Respondent argued offer to applicant did not include farm accommodation applicant residing in - Authority found applicant's acceptance of offer of employment capable of being inferred because of common elements shared with H - Found applicant to carry on with arrangement that had with L - Found offer to applicant not conditional on signing EA - Found applicant and respondent intended to and did enter into binding EA - Found applicant person intending to work as relief milker on job share basis with H - UNJUSTIFIED DISMISSAL - Authority found when H dismissed respondent took no steps to advise applicant that employment would continue - Found dismissal occurred in absence of clarification by respondent to contrary - No attempt by respondent to justify dismissal - Dismissal unjustified - Remedies - Authority took into account respondent's attempt to make clear to applicant position available on farm went someway to reducing humiliation suffered - No contributory conduct - $2000 compensation appropriate - Milker
Result: Application granted ; Compensation for humiliation etc ($2,000) ; Costs reserved
Clark v Dargaville High School Board of Trustees
11 Mar 2008, R Arthur, AA 87/08, (7 pages)
PRACTICE AND PROCEDURE - Authority identified claims and remedies sought by applicant from previous determination AA 344/07 and statement of claim in District Court ("DC") - Applicant refused to attend investigation meeting as sought later date in school holidays - Applicant sought stay of investigation to avoid disclosing attendance at investigation meeting to new employer when applying for leave and as related claim in DC - Respondent's key witness unable to attend meeting during first two school holidays due to work commitments - Authority noted investigation meeting would then be far later than material events - Authority noted setting date for investigation meeting was decision for Authority and consulting parties courtesy only - Authority considered applicant's conduct, position regarding attending notified investigation meeting and reasons for doing so, and respondent's right to have matter determined without undue delay - Authority concluded could do no more to investigate claim - Applicant litigious - In equity and good conscience, claim dismissed - Science teacher
Result: Orders made; Costs reserved
Davidson v Y3K Energy Pty Ltd & Anor
20 Feb 2008, Y S Oldfield, AA 54/08, (10 pages)
PRACTICE AND PROCEDURE - Identity of employer - Triangular employment - First respondent registered in Australia - Second respondent registered in New Zealand ("NZ") and wholly owned subsidiary of first respondent - "K" director of both respondents - Second respondent ceased trading and appeared insolvent - Applicant shareholder, director and initially full time employee of first respondent - Full time role not sustainable so applicant accepted offer of "temporary caretaker role" managing second respondent - Applicant claimed would return to work in Australia after temporarily managing NZ business - Applicant claimed employed by first respondent - Respondents argued fixed term employment with second respondent - Respondents argued applicant paid by second respondent and paid NZ tax - Applicant argued employment agreement ("EA") named first respondent as employer - Authority found insufficient evidence to depart from express terms of EA - Found no ambiguity or inconsistency in plain meaning of EA - Found not credible to suggest K simply made mistake in drafting - Found EA provisions consistent with applicant being employed by Australian company to work in NZ - First respondent employer - Investigation of substantive issues to proceed
Result: Orders made ; Costs reserved
Gu & Ors v Kew Holdings Ltd & Ors
6 Mar 2008, R Arthur, AA 77/08, (5 pages)
PRACTICE AND PROCEDURE - Identity of employer - No appearance for respondents - In earlier determination Authority issued consent order providing payment of outstanding wages to applicants - Authority also issued non-publication order subject to exception for enforcement purposes - Respondents did not pay wages owing by due date - Applicants commenced enforcement measures in District Court ("DC") - Authority noted order of Authority filed in DC enforceable in same manner as Court's own orders - Applicants claimed fifth respondent solely liable for wages - Also sought further directions regarding non-publication order - No reply by respondent to minute issued by Authority - Authority satisfied had sufficient information from papers and information provided at earlier investigation meetings to determine issues - Fifth respondent at earlier investigation meeting conceded respondents owed wages claimed - Fifth respondent provided personal cheques for wages and gave personal guarantee to one applicant - Cheques bounced - Authority satisfied applicants worked in fifth respondent's business operating through entities including first and third respondents - Authority found reality of employment arrangements that applicants working for fifth respondent - Authority satisfied fifth respondent liable for wages - First respondent argued lifting non-publication order would be detrimental to business and ability to secure funds owed - Authority noted order initially prevented applicants from taking steps to warn potential employees of risk of being underpaid by respondents - Authority confirmed failure to pay wages in time meant respondents no longer entitled to benefit from non-publication order - Certificate of Determination issued with determination
Result: Orders made ; Arrears of wages ($25,748) ; No order for costs
Kirley v Ora Ltd
2 Apr 2008, M Urlich, AA 51A/08, (2 pages)
PRACTICE AND PROCEDURE - Respondent applied for recall of determination AA 51/08, specifically paragraph 132 - Respondent submitted reimbursement of lost wages should have been for three months, not four months as stated in determination - Applicant objected to recall - Authority found situation fell within third category of recall as laid down in Horowhenua County v Nash (No 2) [1968] NZLR 632, that was justice required determination be recalled - Applicant successful in claim for lost wages - Statement of claim stated paid for three months of six month sabbatical period - Order applicant entitled to be reimbursed four months of that period wrong - Paragraph 132 of determination AA 51/08 amended
Result: Application granted ; Orders accordingly ; Costs reserved
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
Porteous v The Chief Executive of the Department of Building and Housing
26 Feb 2009, G J Wood, WA 18/09, (3 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court ("EC") - Applicant claimed respondent created new role for applicant to avoid paying redundancy entitlements - Applicant claimed agreed to redundancy offer - Removal sought under s178(2)(a) and (b) ERA - First question of law, whether employee entitled to redundancy compensation when offered and declined reassignment when contract did not clearly provide for situation - Second question of law, how long employer in state sector entitled to keep employee doing different duties where position disestablished and reassignment being considered - Applicant argued matter to be removed because in limbo whether can leave employment and obtain redundancy compensation or not entitled to redundancy compensation because failed to take up new position offered - Also submitted given issues of state expenditure, flexibility between employees and employers to avoid redundancies in current economic climate and good faith duties of state sector employees, in public interest for matter to be removed - Respondent consented to removal - Authority accepted circumstances met test in Hanlon particularly as in state sector and given troubled economic times - Found resolution of issue may affect large number of public sector employers and employees as disestablishment of positions often not followed by immediate notice of termination for redundancy - Authority noted may be more costly to attend EC and parties denied benefits from Authority investigation process and determination - However, given important questions of law, agreed facts and as facts not particularly complex, greater benefit to parties and other state sector employees by judgment from EC at first instance - Matter removed to EC
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