Arrears - Employment Relations Act 2000
Aitchison v Intalink Ltd
21 Nov 2007, J Scott, AA 364/07, (12 pages)
ARREARS OF WAGES - Applicant sought commissions earned during employment - Applicant initially employed on salary plus commission subject to minimum increased revenue - Respondent claimed during employment parties agreed on increased salary and removal of commission - Changes not recorded as variation to employment agreement - When applicant resigned sought outstanding wages and commission - Claimed did not give up entitlement to commission and met conditions for payment - Respondent disagreed, argued applicant to develop new business and applicant’s calculations included existing business - Also submitted commission based on increased profit, not turnover - Credibility finding in favour of respondent - Parties agreed to salary increase and removal of commission payments - However, entitled to commission payments for time before variation agreed to as plain words of employment agreement stated commission subject to increase in turnover and did not mention restricted to new clients - Parties to calculate commission owing - Order prohibiting publication of respondent’s financial information - Business Development Manager
Result:
Application granted in part ; Arrears of wages (Quantum to be determined) ; Costs reserved
Amey v Komene & Anor
27 Nov 2008, J Crichton, CA 178/08, (5 pages)
PRACTICE AND PROCEDURE - Identity of employer - Application to reopen personal grievance - No appearance for respondent - When employment relationship ended, applicant raised personal grievance and notified employer of outstanding wages - Parties reached full and final settlement of matters between them at mediation, with applicant not pursuing personal grievance and respondent paying outstanding wages by instalments - Respondent failed to fully honour settlement agreement - Applicant alleged respondents misrepresented themselves in mediated settlement as limited liability company, Sharvai Enterprises Limited (“S”), when in fact traded as partnership - Authority found appeared was never company incorporated as S - Insofar as operators of S represented had benefits of limited liability operators in breach of Companies Act 1993 - Authority satisfied applicant employed by respondents, not S - Applicant sought to set aside mediated settlement, given breaches by respondents, and reintroduce personal grievance claim - Authority satisfied applicant prevented from doing so by s149(3) Employment Relations Act 2000 - Application dismissed - ARREARS OF WAGES - Applicant still owed outstanding wages and other monies pursuant to mediated settlement - Respondents to pay outstanding wages - PENALTY - Applicant settled rather than pursuing personal grievance claim, facilitating prompt resolution - Respondent flagrantly breached settlement agreement and applicant now prevented from reopening personal grievance - Authority satisfied appropriate case to award penalty - $4,000 penalty awarded, payable to applicant - COSTS - Costs to lie where they fall - Truck driver
Result:
Application dismissed (Reopening of personal grievance) ; Arrears of wages ($1,777.84) ; Application granted (Penalty)($4,000)(payable to applicant) ; Costs to lie where they fall
Barnes v Apex Transport Ltd
19 Dec 2007, R A Monaghan, AA 405/07, (8 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant had accident while driving - Asked to attend meeting - Alleged manager stated would be better if applicant resigned - Applicant left premises but did not want to resign - During later conversation applicant told fired - Respondent submitted applicant dismissed for damaging property - No evidence respondent investigated circumstances of accident or considered appropriateness of dismissal - Dismissal unjustified - Remedies - Applicant subsequently pled guilty to charge of careless driving arising from accident - Argued accident caused by fatigue for which he was not responsible - Circumstances did not excuse applicant entirely - Significant degree of contributory fault - Contributory conduct two thirds - ARREARS OF WAGES AND HOLIDAY PAY - Applicant not paid for final week due to failure to report to work and respondent’s belief he had resigned - Applicant submitted did not report for work as no work made available to him - Respondent in breach of obligation to provide work - Applicant entitled to wages for that period - Arrears due and owing - Driver
Result:
Application granted ; Reimbursement of lost wages ($5,147.01) ; Compensation for humiliation etc ($2,000) ; Arrears of wages ($1,561) ; Arrears of holiday pay ($128)(Sick pay) ; ($1,132.80)(Holiday pay) ; Costs reserved
Bradley v Mons
15 Nov 2007, H Doyle, CA 139/07, (9 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Applicant alleged not paid for work performed - No appearance by respondent - Identity of employer - Business applicant worked for sold - Received letter signed by respondent and her husband as “directors” stating they were new owners - Unclear what company they were directors of - No written employment agreement - Applicant submitted only dealt with respondent - Doctrine of Undisclosed Principal - Applicant employed by respondent - No wages received after business sold - Part payment made after applicant left employment - Arrears due and owing - Late payment caused distress and embarrassment, warranted interest at 9 percent - However, letter from applicant not sufficient to raise personal grievance - COSTS - Applicant in person - Venue of investigation meeting chosen during conference call at request of respondent’s husband - Applicant required to travel to investigation meeting - Authority considered appropriate to reimburse applicant for reasonable expenses - Given unusual circumstances, applicant also able to claim wages lost as result of attending investigation meeting - Cleaner
Result:
Application granted ; Arrears of wages ($99.49 net) Holiday pay ($94.50) ; (Interest)(9%) ; Disbursements in favour of applicant ($344.30)(Travel expenses) ; ($180)(Lost wages) ; ($70)(Filing fee)
Downes v Home Improvers Ltd
5 Dec 2007, P Montgomery, CA 147/07, (9 pages)
UNJUSTIFIED DISMISSAL - Poor performance - Respondent denied dismissing applicant - Alleged she left worksite after being spoken to about performance - Submitted entitled to withhold holiday pay as applicant left without giving notice - Applicant previously warned about performance - Applicant claimed dismissed based on allegation from client and then asked to attend meeting - Applicant did not attend meeting but returned uniform and sought final pay - Respondent alleged merely attempting to arrange disciplinary meeting to resolve performance issue - Although respondent asserted no dismissal expended considerable energy supporting dismissal based on performance - Applicant’s evidence preferred - In addition, director heard applicant tell co-worker she had been fired but did not correct alleged misapprehension - Emphasis on arranging meeting attempt to create process after dismissal - Dismissal unjustified - Remedies - Performance issues previously addressed and resolved - No contribution - Entitled to wages for remainder of fixed term - Arrears of wages to be confirmed - Arrears of holiday pay due and owing - Interest 9 percent - Painter
Result:
Application granted ; Reimbursement of lost wages ($6,566) ; Compensation for humiliation etc ($3,000) ; Arrears of wages (Quantum to be determined) ; Arrears of holiday pay ($1,279.05) ; Interest (9%) ; Costs reserved
Ford v Gold Seal International Ltd
3 Dec 2007, D King, AA 381/07, (8 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Constructive dismissal - Applicant advised respondent of history of back pain before employed - Remuneration package included company vehicle - Driving car aggravated back pain and asked that vehicle be changed - Occupational therapist concluded vehicle aggravated condition but decision to change car was respondent’s - Respondent contacted Labour Department - Advised situation was health and safety issue and applicant should provide medical certificate - Parties continued meeting while applicant on sick leave - Attempted to find other work for applicant and later negotiated exit package - Respondent believed termination mutual but applicant considered herself dismissed - Respondent attempted to clarify situation and advised applicant position remained open - Applicant argued respondent did not take all practicable steps to prevent harm and should have explored changing vehicle more fully - Insufficient evidence of causation to decide issue - Letter outlining exit package not a dismissal - Discussion about alternative position merely proposal - However, despite respondent’s assertions she remained employed, Authority of view employment terminated as applicant alleged constructive dismissal and considered employment at end - No dismissal - ARREARS OF WAGES AND HOLIDAY PAY - Arrears due and owing - Interest 10.8 percent - Sales manager
Result:
Application granted (Arrears) ; Arrears of wages and holiday pay (Quantum to be determined) ; Interest (10.8%) ; Application dismissed (Personal grievance) ; Costs reserved
Haussman v Smith & Anor
28 Nov 2007, J Crichton, CA 144/07, (14 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant refused to sign employment agreement - On balance of probabilities, Authority concluded agreement represented parties bargain - Manager observed applicant yelling at animals and striking them with pipe - Actions led to injury to cow - Manager alleged felt threatened by behaviour - Applicant suspended then summarily dismissed - Use of pipe to assist in management of cows actively discouraged by respondents, but evidence did not support conclusion use of pipe prohibited as no clear instruction to applicant - Behaviour towards co-worker also given as one of grounds for dismissal - Applicant racially abused co-worker, threatened him with violence and refused to work with him - Also made threats against him - Applicant’s belief he held position of authority on farm and entitled to discipline co-worker mistaken – Manager’s version of events with cows preferred - Although process carried out quickly, fair in circumstances - Conclusion of serious misconduct warranting dismissal available to respondents - Dismissal justified - RECOVERY OF MONIES - Counterclaim - Respondents claimed applicant left farm property owing power and rent - Monies due and owing - Farm worker
Result:
Application dismissed ; Counterclaim granted ; Recovery of monies ($1,154.52) ; Costs reserved
Lanuel v P L Design Ltd
24 Oct 2008, P Montgomery, CA 161/08, (9 pages)
UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed parties agreed applicant’s salary would increase after two month trial period – Issues arose over applicant’s hours of work, but remained unresolved – Applicant claimed that after 5 ½ weeks employment respondent said could increase salary - Applicant processed documents – Applicant dismissed for allegedly unauthorised pay rise – Respondent argued pay rise not agreed to or approved – Authority found on balance of probabilities respondent did not agree to salary increase – Found applicant honestly but mistakenly believed had been granted raise – However, applicant should have had someone else make adjustments – Found respondent should not have let issue of applicant’s hours of work drift on – Found respondent’s comments before dismissal meeting showed that had predetermined dismissal – Breach of natural justice, as determined result before allowing applicant opportunity to be heard – Respondent also gave short notice of dismissal meeting, causing applicant difficulty finding representation – Process adopted by respondent seriously inadequate – Dismissal unjustified - Remedies – Applicant entitled to six weeks lost wages – Authority considered length of employment in determining compensation award – 50 percent contributory conduct because applicant increased salary without authorisation and by not seeking formal approval for reduction in working hours – RECOVERY OF MONIES - COUNTERCLAIM – Respondent sought to recover overpayment of holiday pay and sick leave – Authority noted recovery would normally be prevented where no written employment agreement existed which would entitle respondent to recover overpayment under s6 Wages Protection Act 1983 – However, applicant was respondent’s payroll officer and paid self holiday pay and special leave entitlements before entitled to – Respondent only aware of this after dismissal – Unjust to allow applicant to retain payments – Respondent entitled to recover overpayments - Office manager
Result:
Application granted (Dismissal) ; Reimbursement of lost wages ($2,890.71) ; Compensation for humiliation etc ($2,500) ; Counterclaim granted (Recovery of monies) ; Overpayment of holiday pay and special leave ($1,147.92)
Rippon v Norsand Ltd
11 Dec 2007, Y S Oldfield, AA 389/07, (7 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Claimed dismissal procedurally unfair - Respondent disestablished part of business where applicant worked - Applicant called to meeting with consultant and told position disestablished - Not offered opportunity to do contract work - Redeployment not considered as no need for staff and respondent did not think applicant would be interested in other work - Lack of consultation - Applicant not given opportunity to influence decision - Procedurally unfair - Dismissal unjustified - Remedies - Applicant encouraged to think had bright future at respondent - Breach of trust compound by director’s failure to tell applicant in person - ARREARS - Applicant claimed parties agreed to profit sharing arrangement and reimbursement of certain expenses - Respondent denied making those commitments - Employment agreement did not contain profit share or expense terms - Evidence fell short of establishing agreement to profit share - Reimbursement claim also failed as expenses unauthorised and minimal - Painter
Result:
Application granted (Dismissal) ; Compensation for humiliation etc ($6,000) ; Application dismissed (Arrears) ; Costs reserved
Thomas v Walkinshaw & Anor
15 Oct 2008, R Arthur, AA 310A/08, (9 pages)
PRACTICE AND PROCEDURE – Identity of employer – First respondent sole shareholder and director of second respondent – First respondent argued employment relationship was between applicant and second respondent – No written employment agreement – Business invoices referred to “Bike 360,” not second respondent – Applicant did not receive payslips or pay cheques while employed so not aware second respondent identified on those – First respondent’s email address referred to second respondent, but did not state it was limited liability company – Applicant not aware “Bike 360” was trading name of second respondent – Found first respondent’s intention that second respondent was employer, and identity of second respondent, not communicated to applicant – Second respondent was undisclosed principal at time first respondent employed applicant – First respondent did not discharge onus to identify principal to applicant, so applicant entitled to pursue first respondent personally - UNJUSTIFIED DISMISSAL - Tension in employment relationship due to incidents relating to applicant’s absence from work and applicant not been paid – After heated discussion, first respondent told applicant to “finish up” as was no longer needed – Authority found communication broke down, but issues did not justify summary dismissal – First respondent argued agreed before employment began that if employment unsuccessful, parties would just shake hands and move on – Authority found arrangement could not preclude basic employment right to have problems addressed in good faith before either party took unilateral steps to terminate employment – Dismissal unjustified – Remedies – Shop closed four weeks after dismissal, so only four weeks lost wages appropriate – Compensation for humiliation and injury to feelings appropriate as applicant devastated by sudden dismissal and embarrassed when knowledge of dismissal from bike shop emerged in cycling circles – Ten percent contributory conduct appropriate due to applicant’s inadequate communication and provocative comments to other staff about pay – ARREARS OF WAGES – After mediation, applicant paid for 84 hours work – Applicant claimed owed 12 more hours wages – In absence of time and wage records, Authority accepted applicant entitled to further wages and holiday pay – Interest at nine percent from date of dismissal – COSTS – Applicant not entitled to costs for legal advice relating to preparation for and attendance at mediation – Applicant entitled to lodgement fee – Other costs reserved – Bike shop sales assistant
Result:
Application granted (dismissal) ; Reimbursement of lost wages ($2,754) ; Compensation for humiliation etc ($2,250) ; Arrears of wages and holiday pay ($220.32) ; Interest on arrears ($28.41) ; Disbursements in favour of applicant ($70)(filing fee) ; Costs reserved
Wang v Bade Draper Solutions Ltd
17 Dec 2007, M Urlich, AA 396/07, (4 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Whether employee or volunteer - Respondent alleged applicant agreed to work unpaid trial period - Applicant claimed agreed hourly rate and received assurances would be paid when pursued unpaid wages - Respondent’s contention parties entered voluntary arrangement inconsistent with purported purpose of arrangement, to assess applicant’s suitability to work for reward - Trial periods required to be in writing - No voluntary probationary period - At minimum, applicant person intending to work and entitled to be paid for work performed - Agreed rate less than minimum wage - Arrears due and owing - UNJUSTIFIED DISMISSAL - Respondent claimed applicant dismissed for poor performance but provided positive reference - Applicant alleged told could no longer be employed as owner’s son to work her hours - Applicant’s evidence accepted - Dismissal unjustified
Result:
Application granted ; Reimbursement of lost wages ($337.50)(Two weeks) ; Compensation for humiliation etc ($1,500) ; Arrears of wages ($894.50) ; Arrears of holiday pay ($71.55) ; Costs reserved
