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Dams v Powerbeat International Ltd
22 Nov 2006, A Dumbleton, AA 352/06, (5 pages)
RAISING PERSONAL GRIEVANCE - Whether grievance raised within 90 days - Time ran from date applicant formed belief dismissed, not last day of work - After dismissal applicant approached lawyer, who posted grievance letter - When no response for several weeks, applicant contacted lawyer and letter sent again - Authority accepted first letter sent well inside 90 day period - However, not satisfied respondent received it - Grievance could not be said to have been communicated to employer - Second letter received three days out of time - Whether exceptional circumstances permitted granting of leave to raise grievance out of time - Respondent had over two weeks notice leave would be sought - Delay small in relation to overall 90 day period - No evidence delay prejudiced respondent - Grievance arguable and not totally without merit - Applicant made reasonable arrangements to have grievance raised on his behalf and, when heard nothing more, made enquiries - Circumstances did not fit s115(b) Employment Relations Act 2000 as lawyer did not fail to write or post letter in time - Applicant could not reasonably be held to blame for whatever caused non receipt of posted letter - Delay occasioned by exceptional circumstances - Just to grant leave to raise grievance out of time - Result would be same if lawyer were to blame for delay - ARREARS OF HOLIDAY PAY - Respondent undertook to see applicant received holiday pay owing - Engineer
Result: Application granted ; Parties directed to mediation ; Costs reserved
Engineering, Printing and Manufactoring Union & Ors v Borg Industries Ltd
7 Dec 2006, Y Oldfield, AA 370/06, (2 pages)
PRACTICE AND PROCEDURE - Risk of liquidation meant Authority opted for investigation meeting without sending parties to mediation - No appearance by two applicants, MM and PL - Authority took no further action in respect of their claims - However, as investigation meeting set down at very short notice claims not dismissed - MM and PL to advise Authority if wanted to resume claim - ARREARS OF WAGES AND HOLIDAY PAY - Applicant employees laid off without notice - Sought payment in lieu of notice and outstanding holiday pay - Respondent did not dispute WF and IS not paid entitlements - MS owed pay in lieu of notice only - Applicants had not received pay slips and unable to tell Authority gross weekly wage - Respondent to provide wage and time records to applicants' representative - RECOVERY OF MONIES - Applicant union sought remittance of union fees deducted from members wages by respondent - Respondent did not dispute fees owed and stressed unable, rather than unwilling to pay - Parties reminded could attend mediation to discuss arrangements for payment
Result: Application granted ; Arrears of wages (Notice)(4 weeks)(Payable to WF, IS and MS) ; Arrears of holiday pay (2 weeks)(Payable to WF and IS) ; Other monies ($3,955.20)(Union fees)(Payable to union) ; Orders accordingly ; No order for costs
Garas-Endrawis v Albany Food Warehouse Ltd
23 Nov 2006, R Monaghan, AA 354/06, (9 pages)
UNJUSTIFIED DISMISSAL - Alleged actual or constructive dismissal - Applicant injured back at work - Matter referred to ACC - Medical certificate stated applicant not fit for heavy lifting - No light duties available - Applicant sent home - No dismissal at this time, open ended nature of absence not unknown in employment law and respondent should have been advised of progress - However ACC concluded employment had ended - Applicant found out employee number assigned to someone else and concluded employment terminated - Respondent to clarify matter - Received indication that employment terminated - Should have contacted employer, not ACC - Acquiesence by applicant considered by respondent that employment abandoned - Authority concluded circumstances amounted to combination of misunderstanding and miscommunication, but no dismissal - Matter transferred to business services manager ("KP") - Applicant informed that still a staff member and still on payroll - Applicant indicated would not be able to do checkout job - Applicant would not accept alternative employment at position of lower level than what she was qualified for - Applicant failed to distinguish between wider vacancies that ACC recommended and work respondent might offer in interests of continuing her employment - Applicant not entitled to expect kind of work that was being explored by ACC - Applicant told if could not work as checkout operator then should resign - Letter sent to applicant requesting confirmation of termination - Applicant confirmed position should be terminated - Overall, circumstances amounted to termination by consensus - No dismissal - UNJUSTIFIED DISADVANTAGE - Changes to hours made by agreement - No unjustified disadvantage - ARREARS OF WAGES AND HOLIDAY PAY - Claim for unpaid holidays dismissed - No need for notice since termination by consensus - Length of service 15 months - Checkout assistant
Result: Application dismissed ; Costs reserved
Kirk v Barrett
8 Dec 2006, J Crichton, CA 171/06, (3 pages)
ARREARS OF WAGES - Applicant sought first week's ACC earnings related compensation - Sustained work injury precluding continued employment - Respondent indicated did not pay compensation because applicant able to use ankle allegedly could not walk on - Now understood obligation to make payment - Wages due and owing - ARREARS OF HOLIDAY PAY - Also sought payment for public holidays and annual holidays - Respondent argued applicant seasonal casual employee not entitled to receive holiday pay separately from hourly rate - Instant case different from Alliance Group Ltd v New Zealand Meat Workers Union Inc (cited below) because here worker's entitlement to annual and public holiday leave fell to be determined within particular season - Satisfied applicant worked as and when required - Factually seemed to be seasonal employment relationship on casual principles rather than permanent relationship - Nothing turned on employment status - Fundamental issue whether public holidays fell on otherwise working days - Applicant habitually worked Mondays and Fridays - Entitled to time and half and alternative holiday for public holidays worked on those days - Given no written employment agreement existed impossible to maintain applicant agreed wage rate included annual holiday pay - Holiday pay due and owing - Respondent to pay instalments
Result: Application granted ; Arrears of wages ($250) ; Arrears of holiday pay ($504.99) ; Disbursements in favour of applicant ($70)(Filing fee)
Pellow-Jarman v CMI Fasteners Ltd
20 Dec 2006, M Urlich, AA 384/06, (3 pages)
ARREARS OF HOLIDAY PAY – Applicant argued calculation of holiday pay should have included bonus payments – Respondent submitted bonus expressly excluded from calculation under terms of employment agreement – Agreement excluded allowances and reimbursement payments - Respondent relied on payroll coding system which coded payments as allowance – No suggestion payroll system part of applicant’s terms of employment, or that wording used agreed with him – Coding of payroll system had no bearing on terms of employment – No suggestion bonus payments were reimbursement payments – Respondent never had occasion not to approve applicant's bonus – Bonus part of employment agreement - No discretionary element to payment – Bonus payments part of gross earnings for purposes of calculating holiday pay – Authority advised would refer issue of quantum to Labour Inspectorate
Result: Application granted ; Arrears of holiday pay (Quantum to be determined) ; Orders accordingly ; Disbursements in favour of applicant ($70)(Filing fee)
Purcell v Wired Communications NZ Ltd
29 Jun 2007, P Cheyne, CA 71/07, (4 pages)
UNJUSTIFIED DISMISSAL – Redundancy - No appearance by respondent – Applicant's evidence accepted - Dismissed without notice or warning when told by payroll no further work – Applicant attempted to contact director but he did not return calls – Appeared business had not traded since applicant dismissed, although apparently some staff working for another business run by director – Even (perhaps especially) in case of apparent business failure, employees entitled to fair and reasonable treatment – Dismissal unjustified - Remedies - No written employment agreement specifying notice - Reasonable notice fixed at four weeks - ARREARS OF WAGES AND HOLIDAY PAY - Applicant not paid at agreed rate - Also not paid last week's wages or holiday pay - Monies due and owing - COSTS - Length of investigation meeting not specified - Length of service 14 weeks
Result: Application granted ; Compensation for humiliation etc ($10,000) ; Wages in lieu of notice ($1,300)(Four weeks) ; Arrears of wages ($1,300) ; Arrears of holiday pay ($273) ; Costs in favour of applicant ($1,500)
Semmens (Labour Inspector) v SDP Call Centres Ltd
27 Oct 2006, D Asher, WA 145/06, (9 pages)
JURISDICTION - Applicant Labour Inspector sought determination R an employee - No appearance for respondent - Director claimed unable to prepare and attend investigation meeting due to ill health - Respondent had witness statements and elected not to respond to allegations - Age of R's claims, absence of medical records about director's health, and advice regarding respondent's poor trading position defeated its implied request matters be "held off" - Not unfair to proceed with investigation meeting - Whether employee or independent contractor - No written employment agreement - Two other ex-employees of respondent pursued similar claims - Claims settled by way of a Authority consent determination - Applicant relied on express terms in consent determination to support claim R an employee - R worked from respondent's premises with set regular work patterns - Remuneration commission based - Not required to invoice for services - Respondent's level of control significant - Evidence showed R, along with other operators, integral part of respondent's business - No evidence in business on own account - Overall picture clearly one of R being full-time employee - No evidence of industry practice telephone operators/telemarketers typically employed on contract for services - No reason to doubt R's evidence, to extent she turned her mind to it, she intended to enter employment relationship - Employee - ARREARS OF WAGES AND HOLIDAY PAY - Applicant entitled to recover minimum wages, annual holiday pay, public holiday pay, and interest - Minimal wage and time records provided despite requests made to respondent - Applicant's estimation of arrears accepted - Holiday pay and wages due and owing - Interest 6 percent - COSTS - Respondent to reimburse filing fee
Result: Application granted ; Arrears of wages ($30,422.52) ; Arrears of holiday pay ($3,264)(Public holiday pay), ($5,461.20)(Annual holiday pay) ; Interest (6%) ; Disbursements in favour of applicant ($70)(Filing fee)
Viegas v The Flower House (2005) Ltd
27 Jun 2007, Y Oldfield, AA 193/07, (4 pages)
UNJUSTIFIED DISMISSAL – Redundancy – No appearance by respondent – Applicant redundant when shop stopped trading – No notice shop to be closed or discussion regarding redeployment – Authority could not safely conclude redundancy genuine – Dismissal unjustified – Remedies - Authority accepted four week notice period applied - Applicant also alleged respondent’s director spread malicious gossip about her – Evidence on point hearsay and Authority not satisfied assertion well founded - ARREARS OF WAGES AND HOLIDAY PAY – Arrears of overtime and holiday pay due and owing - Applicant unable to provide gross wages and IRD had not received PAYE for her from respondent - Amounts calculated in net terms - Respondent reminded of obligation to pay PAYE - PARENTAL LEAVE – At time of redundancy applicant 4½ months pregnant – Formal parental leave application not completed but had told respondent wished to take parental leave – Applicant’s difficulty finding work after dismissal compounded by understanding no longer eligible for statutory parental leave payment – Sought compensation for loss of benefit – While express statutory provision ensured employees whose employment ended during parental leave retained entitlement to payment, similar provision did not appear to have been made for those whose employment terminated before commencement of leave – Question of eligibility for payment in such cases not tested - Payment a statutory entitlement not obligation of employer - Could not be described as benefit of employment relationship – Authority could make no further order for compensation for loss of parental leave payment – Length of service one year - Florist
Result: Application granted ; Reimbursement of lost wages ($7,150 net)(13 weeks) ; ($2,200 net)(Notice) ; Compensation for humiliation etc ($5,000) ; Arrears of wages ($690 net)(Overtime) ; Arrears of holiday pay ($949.79 net) ; Disbursements in favour of applicant ($70)(Filing fee)
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