|
Previous Section | Table of Contents | Next Section
Cathro v Monastra
12 Dec 2008, J Crichton, CA 191/08, (4 pages)
UNJUSTIFIED DISMISSAL - No appearance by respondent - Authority satisfied employer was respondent, not respondent's company - Upon arrival at work, applicant given free movie tickets and told to go to movies rather than work - Next day applicant left list of problems with kitchen as was concerned about health risks of dirty kitchen - That evening applicant received text message from respondent asking where applicant was - Applicant suggested respondent contact him but respondent failed to do so - Following day respondent told applicant no longer employed - Authority found lack of enquiry or opportunity to be heard was unfair - Dismissal unjustified - Remedies - Authority satisfied applicant became stressed and concerned about possible impact of dismissal on reputation - $1,500 compensation appropriate - Reimbursement of lost wages for week until applicant found new employment - ARREARS OF WAGES AND HOLIDAY PAY - Authority satisfied applicant owed wages and holiday pay - Chef
Result: Application granted (unjustified dismissal) ; Compensation for humiliation etc ($1,500) ; Reimbursement of lost wages ($662.50) ; Arrears of wages ($1,462.50) ; Arrears of holiday pay ($371) ; Disbursements in favour of applicant ($70)(Filing fee) ; Costs to lie where they fall
Chiu v New Deli & Cafe Ltd and Anor
18 Nov 2008, A Dumbleton, AA 394/08, (35 pages)
PRACTICE AND PROCEDURE - Respondents two separately incorporated companies with same directors - Written employment agreement stated both respondents were "The Employer" - Authority found applicant employed by both respondents at same time - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Applicant advised respondent that pregnant - Applicant raised disadvantage grievance with respondents, stating disadvantaged and discriminated against by reason of pregnancy - Applicant dismissed two days later - Alleged ground for dismissal was failure to provide proof of eligibility to legally work in New Zealand - Respondent offered job back on condition applicant provided proof of immigration status - Applicant claimed dismissal unjustified due to discrimination by reason of pregnancy - Respondent denied claims, and argued applicant employed 3 weeks, not six months - Conflict in evidence as to term of employment - Parties called evidence from customers of café, past and present employees, telephone records, forensic examination of handwriting, bus tickets and bank deposit receipts - Authority found more than likely that applicant employed for over six months, and that respondents called false evidence - Authority rejected respondent's alleged justification for dismissal - Accepted applicant's evidence that already provided satisfactory proof of eligibility to work so did not provide it again when requested - Found respondent's real concern likely impending disclosure to IRD of respondent's failure to pay PAYE on wages when applicant applied for paid maternity leave - Applicant's immigration status pretext for dismissal - Real reason applicant's pregnancy or impending parental status and its further consequences - No justification for dismissing applicant on grounds of pregnancy - Dismissal unjustified - Due to close proximity in time and event, Authority found dismissal grievance subsumed disadvantage and discrimination grievances - Found in any case, no actual disadvantage or discrimination occurred prior to dismissal - Remedies - No contributory conduct - Authority considered when applicant would have stopped work due to pregnancy - Requirement to mitigate loss considered against respondent's failure to attend mediation in timely manner - Thirteen weeks lost wages awarded - Applicant suffered substantial emotional harm through dismissal and loss of chance to secure maternity leave - Harm aggravated by respondent's conduct in persisting with false evidence and insulting insinuations about applicant - $8,000 compensation appropriate - PARENTAL LEAVE - Authority found unjustified dismissal prevented applicant from applying for maternity leave - No reason why application would not have been accepted - Entitled to compensation for loss of opportunity - Authority considered compensation for loss of expected statutory benefit could be awarded under s123(1)(c) ERA - Civil remedy of compensatory damages for breach of contract also available under s162 ERA - Loss quantifiable as would have received 14 weeks pay - Loss directly and foreseeably arose from respondent's unlawful act of unjustified dismissal, and not remote consequence - Authority awarded sum to restore applicant to position if opportunity to apply for paid maternity leave not unlawfully taken away - ARREARS OF WAGES - Authority found applicant received holiday pay for three weeks rather than six months - Authority accepted applicant's calculations - Holiday pay owing - Two days pay also owing - COSTS - Applicant represented self - No costs or disbursements awarded - Waitress
Result: Application granted (unjustified dismissal) ; Arrears of wages ($239.20) ; Arrears of holiday pay ($1,384.27)(Interest 6%) ; Reimbursement of lost wages ($8,023,60)(Interest 6%) ; Compensation for humiliation etc ($8,000) ; Compensation for loss of benefit of paid parental leave ($4,619.47) ; Application dismissed (unjustified disadvantage) ; No order for costs
Doherty v PRP Auckland Ltd (now Orakei Group (2007) Ltd)
21 Dec 2007, P R Stapp, WA 177/07, (8 pages)
RECOVERY OF MONIES - Applicant sought to be paid outstanding monies by respondent , which he claimed jointly employed him with third party - Third party had accepted liability to pay outstanding amount in earlier Authority determination - However, went into liquidation before applicant paid - Authority had reserved leave for investigation meeting to be resumed in respect of respondent's liability - Identity of respondent complicated by involvement of large number of related companies and name changes - Company currently trading as respondent not applicant's employer - However, evidence to show that company that formally used same name was employer - Liable for outstanding monies - However, appeared to be shell company and no longer trading - COSTS - One hour investigation meeting - $2,000 costs to applicant
Result: Application granted ; Orders accordingly ; Costs in favour of applicant ($2,000)
Hamilton v Monastra
12 Dec 2008, J Crichton, CA 192/08, (3 pages)
ARREARS OF WAGES AND HOLIDAY PAY - No appearance by respondent - Applicant claimed owed one weeks wages and holiday pay - Respondent previously acknowledged wages owing - Authority satisfied wages owing - Respondent to pay outstanding wages and holiday pay - Waiter/Bartender
It Maniacs Ltd v Ford
12 Nov 2007, R A Monaghan, AA 351/07, (45 pages)
BREACH OF CONTRACT - Applicant claimed breach of contract and sought damages - Applicant claimed respondent attempted to set up competing business, enticed applicant's employee to work for him and breached confidential information and IT policies - Applicant also invited Authority to conclude respondent in contempt of Authority by failing to produce evidence - Respondent intended to set up business to sell specialist computer software - Applicant advised that plan acceptable if did not promote business to applicant's clients or work on business during applicant's time - Applicant offered respondent franchise opportunity which respondent rejected - Proposal included applicant's financial information and business plan - Information provided on confidential basis - Forensic examination revealed respondent copied several of applicant's client's CVs to laptop - Applicant claimed was evidence respondent using CVs for own business - Respondent argued CVs necessary to test software - Applicant's primary concern respondent setting up business in competition with applicant and breached obligations as employee - Authority identified supplementary breaches prior to hearing primary breach - Claimed breached Employment Agreement ("EA") by purchasing domain name, preparation of stationary, transferring large quantity of applicant's information to home server, registering recruitment website, testing applicant's software, and registration of new business - Authority found duty of fidelity did not prevent employees preparing for own business provided done without breaching duty of trust and confidence to current employer - Authority found no evidence respondent offered employment to co-worker - Authority not persuaded respondent diverted applicant's candidates to own business - Found allegations regarding misuse of confidential information and intellectual property was conduct capable of undermining trust and confidence, however, in these circumstances breaches not sufficient in themselves to amount to undermining conduct - Authority found respondent's credibility dented by deleting material from personal laptop which prevented applicant and Authority from identifying extent of activities - Authority considered applicant's evidence not as compelling as applicant believed - However, respondent's subsequent conduct seriously suggested guilty conscience - Authority concluded respondent's failure to inform applicant that working on new business after declining franchise offer favours finding respondent preparing to establish business in breach of duty of fidelity - Damages - Authority satisfied not enough evidence to warrant order that respondent repay salary - Found no loss suffered by applicant as result of breach of EA by respondent - Respondent ordered to reimburse applicant for costs incurred in forensic examinations ($14166) - Found respondent aggravated matters by deleting material after became aware of applicant's concerns - Authority found not enough evidence to support other damages claims - COUNTERCLAIM - UNJUSTIFIED DISADVANTAGE - Respondent claimed decision to suspend unfair as not given opportunity to be heard before suspension - Found no disadvantage as applicant's interests in protecting its proprietary information justified suspension without respondent being heard - UNJUSTIFIED DISMISSAL - Applicant argued decision to dismiss based on evidence in forensics report - Authority did not accept applicant's reasons for failing to reconvene disciplinary meeting - Respondent's breach of fidelity reflected extent to which could commence a competing business, however, when made decision to dismiss applicant read more into material available and therefore resulting conclusions flawed - Authority found use of respondent's "VPN connection" from home server a breached applicant's IT policy but risk to security not expressly relied on as reason for dismissal - Authority concluded reasons for dismissal not properly put to respondent - Dismissal unjustified - Remedies - Authority concluded respondent's efforts in response to applicant's investigation made respondent author of own misfortunes - No remedies awarded - ARREARS OF WAGES - Authority did not accept wages could be withheld on account of damages when neither quantum or liability established - Authority ordered applicant to pay $9328 being final pay and holiday pay unlawfully withheld from respondent - PENALTY - Authority found respondent's approach to applicant's information irresponsible but not breach of good faith - Authority concluded view of respondent's conduct reflected in remedy being declined for personal grievance - Penalty declined - National sales manager/senior recruitment consultant
Result: Application granted (Breach of contract) ; Application dismissed (Penalty) ; Damages ($14,166.54) ; Counterclaim granted (Dismissal) ; Counterclaim dismissed (Disadvantage) ; Counterclaim granted (Arrears of wages and holiday pay) ($9,382.57) ; Costs reserved
Stone v Villages of New Zealand (Pakuranga) Ltd
11 Dec 2007, V Campbell, AA 388/07, (24 pages)
ARREARS OF WAGES - Applicant sought commission payments - Initially, no written employment agreement - Applicant concerned at provision in subsequent formal agreement that provided for reduced commission if certain circumstances - Matters complicated as applicant had requested all payments be deferred during start of employment for purposes of reducing income for child support calculation - Meant different understandings about payment did not become known for nearly a year - Reduced commission not a term of employment - Commission due and owing - Applicant also sought reimbursement of deductions - No express authority for deductions - Entitled to repayment of money taken for curtains as not instructed curtains no longer to be provided - No reimbursement for commission he was never entitled to claim - UNJUSTIFIED DISMISSAL - Constructive dismissal - On balance of probabilities respondent breached duty to treat applicant fairly and reasonably as result of unlawful deductions, underpayments and failure to ensure all sales lead referred to him - Breach of good faith - Reasonably foreseeable applicant would resign due to breach - However, sales with unpaid commissions and deductions occurred after applicant sought new job - Applicant accepted new employment but remained at respondent and took sick leave - Resigned days before contractually obliged to start new job - Applicant's conduct regarding moving on from respondent misleading - Had also set up fake sales calls in breach of good faith - Respondent's breaches not causative of resignation - Applicant resigned as due to commence new employment - No constructive dismissal - Sales person
Result: Application granted (Arrears) ; Arrears of wages ($10,320)(Commission) ; ($2,101.60)(Reimbursement of deductions) ; Application dismissed (Dismissal) ; Costs reserved
Previous Section | Table of Contents | Next Section
|
