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Robinson (Labour Inspector) v Hine
25 Oct 2006, M Urlich, AA 326/06, (2 pages)
ARREARS OF WAGES - Applicant Labour Inspector sought to recover two days sick leave entitlement on behalf of employee - Medical certificate provided at request of respondent - Sick leave not paid and matter referred to Labour Inspectorate - No appearance by respondent - No written employment agreement - Authority accepted applicant's unchallenged evidence - Applicant entitled to sick leave - Interest 7 percent - PENALTY - Respondent's failure to pay sick leave deliberate - Penalty appropriate - Applicant also sought penalty for failure to provide written agreement - Penalty declined as respondent not put on notice of claim - COSTS - Respondent to reimburse applicant for filing fee - Reasonable to recover full costs incurred in engaging service agent - Authority directed applicant to arrange personal service of investigation meeting notice on respondent - Legal secretary
Result: Application granted ; Arrears of wages ($250)(Sick leave) ; Penalty ($250)(Payable to Crown) ; Interest (7%) Costs in favour of applicant ($108.17) ; Disbursements in favour of applicant ($70)(filing fee)
Taylor v eCom New Zealand
10 Oct 2006, D King, AA 29A/06, (6 pages)
ARREARS OF WAGES - Applicant claimed owed unpaid commissions - Performance incentive to be paid on "all new business closed from new or existing clients" - Earlier determination held bonus to be paid on new business arising from applicant's efforts, not on new business simply concluded whilst employed - "New" business meant something not a continuation or retention of existing business - Interpretation of "new" business as something other than business company would get on day to day normal running sensible - Applicant also had to be instrumental in obtaining business and it had to be "closed" by him - Company policy did not consider new business closed until contract signed - Authority considered several transactions and found no commission owing - COUNTERCLAIM - PENALTY - Respondent claimed applicant breached confidentiality of mediation by telling Authority Support Officer no offer made - Unfortunate comment made, but Authority did not consider breach deliberate - Declined to award penalty - DAMAGES - Application to enforce undertaking as to damages - Applicant obtained interim reinstatement on garden leave - Dismissal justified - Applicant to reimburse wages paid by respondent plus interest - Business Development Manager
Result: Application dismissed ; Counterclaim dismissed (Penalty) ; Counterclaim granted (Damages) ; Damages ($8,836.94) ; Interest (14.5%) ; Costs reserved
Tuari & Anor v Sims Pacific Metals Ltd & Ors
23 Mar 2007, P Cheyne, CA 27/07, (14 pages)
UNJUSTIFIED DISMISSAL – Constructive dismissal - First applicant (“J”) wife of second applicant (“T”) - Both employed by respondent - Respondents concerned about T’s performance – T suffered stress-related breakdown – T given two options, disciplinary process or exit package – T agreed he and J would resign in exchange for money – T confirmed had spoken to J and she agreed to resign – T signed settlement agreement - Next morning applicants returned to work, where J deleted computer files and T broke memory stick – J disputed resignation, claiming T could not make decision on her behalf – Respondents stood J down but later said could return to work – J subsequently resigned – Whether constructively dismissed - Only possibility of coercion was dealings over J’s later resignation – Respondents could be criticised for initiating arrangements through T – However, J knew and implicitly consented to arrangements – No course of conduct with deliberate and dominant purpose of coercing resignation – No sufficiently serious breach of duty making resignation reasonably foreseeable - No constructive dismissal – BREACH OF CONTRACT - Counterclaim - Respondents claimed breach of contract and sought damages - Implied duty of trust and confidence extended to prohibit intentionally damaging company property – J breached implied obligations by deleting computer files and assisting T in breaking memory stick – No evidence of actual loss aside from memory stick – J ordered to pay damages for memory stick only - PENALTY – Respondents claimed applicants breached implied terms and/or aided and abetted each other in breaching employment agreements – No reason to distinguish between levels of culpability – Penalty imposed against applicants for breach of implied terms of trust and confidence – BARGAINING – T counterclaimed settlement agreement result of unfair bargaining under s68 Employment Relations Act 2000 ("ERA") – Authority found settlement agreement term of employment agreement and unfair bargaining claim considered - While T unwell, no evidence could not understand implications of settlement agreement – Evidence T went into meeting intending to resign – Could not succeed under s68(2)(a) ERA – Whether T induced to enter settlement agreement by oppressive means, undue influence or duress – Although pressured by options put to him at meeting, could not succeed in face of evidence intended to resign – Valid full and final agreement meant T could not succeed in personal grievance – Could not circumvent effect of settlement with penalty actions against respondents - J's length of service seven months, T's not specified - Office assistant and yard manager
Result: Application dismissed (Unjustified dismissal, bargaining) ; Application granted (Breach of contract, penalty) ; Damages ($50)(Payable to Respondents) ; Penalty ($1,000 each applicant)(Payable to Crown) ; Costs reserved
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