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Thanakornmanaporn v Boonyaphat Company Ltd
8 Nov 2006, RA Monaghan, AA 340/06, (7 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Respondent recruited applicant from Thailand on fixed term agreement and retained his passport, although would temporarily return it on request - Before fixed term expired applicant informed respondent offered another job - Also requested passport - Manager did not return it as thought wanted passport so could leave immediately - Applicant had not said intended leaving early - Insufficient grounds for manager's conclusion - Both parties came to link return of passport with termination of employment - Applicant felt no choice but to leave because wanted passport - Even if passport sought to pursue employment elsewhere, did not in itself mean would leave current employment early - Applicant did not resign or voluntarily leave employment - Although respondent not seeking to dismiss, actions amounted to initiative for termination of employment - Applicant dismissed - Since based on misunderstanding, dismissal unjustified - Remedies - Lost wages limited to period of fixed term - Authority unconvinced loss mitigated and lost wages adjusted to reflect that - Minimal compensation as already unhappy at work and intended to leave soon - PENALTY - Claim for breach of obligation to provide opportunity to obtain advice when entered employment relationship raised out of time - Breach of good faith not raised expressly before investigation meeting - Not appropriate to raise it in submissions and not treated as part of employment relationship problem - Applicant sought penalty for payment in Thai baht rather than New Zealand dollars - Parties had agreed part of applicant's salary would be remitted directly to his Thai account - No breach of employment agreement in respect of payment in baht and no penalty to be imposed - However, requirement for written consent to pay wages into bank account not met - Breach did not call for penalty, but respondent to amend its employment agreements - Employment agreement silent on deductions made for accommodation, food and utilities - Penalty warranted but mitigating factors as applicant orally agreed to deductions and respondent recognised mistakes and prepared to address them - ARREARS OF WAGES - Letter from respondent to Immigration Service before applicant employed stated hourly rate for position - However, letter merely account from employer to third party, not evidence of later agreement between parties - No grounds to order repayment of deductions as subject to oral agreement - Correct accounting of PAYE between respondent and IRD - If applicant wrongly taxed matter to address with IRD - Both parties' statements of evidence filed late - Start of investigation meeting delayed so applicant and advocate could read respondent's statement - Advocate advised Authority ready to proceed and not appropriate for him to allege in submissions not given enough time to prepare - Length of service one year ten months - Chef
Result: Application granted (Unjustified dismissal) ; Reimbursement of lost wages ($3,115.38) ; Compensation for humiliation etc ($1,000) ; Application granted in part (Penalty) ; Penalty ($1,000)(Payable to Crown) ; Application dismissed (Arrears of wages) ; Costs reserved
Watson v Fibre Logistics Ltd
20 Oct 2006, RA Monaghan, AA 323/06, (3 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought wages and holiday pay due on termination - Dismissed after charged with offences involving misappropriation of funds from employee social club - Dismissal letter stated wage entitlements "frozen" pending outcome of misappropriation issue - Respondent claimed awaited outcome of trial in District Court - Respondent failed to meet timetable set by Authority for providing confirmation whether amounts in dispute, but subsequently advised amounts due - Authority set further timetable to allow respondent to address remaining claims - In light of delaying tactics to date, Authority warned would issue determination without hearing further from respondent - Nothing further heard from respondent after contacted by Authority - Unacceptable - Proceedings determined without hearing further from respondent - No appearance for respondent - Wages and holiday pay due and owing - Interest 7.7 percent - PENALTY - Respondent failed to comply with Wages Protection Act 1983 by not paying wages - Failure also breached employment agreement - Liable to penalty under s134 Employment Relations Act 2000 ("ERA") - Deliberately withheld wages and flouted law - Given at least two of breaches based on same conduct not appropriate to order penalties in respect of each breach - Rather, conduct treated as single breach - Deliberate nature of breach, aggravated by subsequent delaying tactics, meant more than nominal penalty called for - Authority not addressed on issue whether respondent in breach of good faith obligations or whether penalty should be awarded under s4A ERA - Possibility of breach merely noted - If applicant guilty of charges would be called to account in appropriate place - COSTS - Length of investigation meeting not specified - Some, but not all, of applicant's modest legal fees bore directly on Authority proceedings - Entitled to contribution to costs of $50 plus filing fee
Result: Arrears of wages ($2,115.38) ; Arrears of holiday pay ($3,077.89) ; Interest (7.7 %) ; Penalty ($3,000)(Payable to Crown) ; Costs in favour of applicant ($50) ; Disbursements ($70)(Filing fee)
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