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Horn (Labour Inspector) v Cool Cars Ltd
26 Oct 2006, V Campbell, AA 327/06, (5 pages)
ARREARS OF HOLIDAY PAY - Applicant Labour Inspector sought to recover outstanding holiday pay of employee ("T"), interest, penalty and filing fee - No appearance for respondent - Adjournment granted to allow attendance - Leave to defend claim granted - Respondent alleged T contractor not employee - No written employment agreement - No work undertaken for anyone else - While tax status not determinative, T received no personal tax advantage from deduction of withholding tax - Work integral to business and control asserted by respondent consistent with relationship of employment - Not in business on own account - Employee - Entitled to receive holiday pay - Interest at 8.5 percent - PENALTY - Respondent failed to comply with requirements of Holidays Act 2003 - Genuine incorrect belief T contractor and not required to accrue and pay holiday pay - No penalty payable
Result: Application granted ; Arrears of holiday pay ($1,100) ; Interest (8.5 percent) ; Disbursements ($70)(Filing fee)
Kenton v Labour Inspector (J Henning)
20 Nov 2006, J Crichton, CA 159/06, (3 pages)
ARREARS OF WAGES AND HOLIDAY PAY- Objection to demand notice issued by respondent Labour Inspector - Demand notice properly served and respondent met all obligations under statute - Demand notice sought holiday pay, pay for alternative holidays and penal payments for work performed on pubic holidays - Applicant agreed holiday pay owing but disputed other two sums - Applicant conceded had difficulty because proper records not kept - No written employment agreement - Diaries applicant claimed were time records were operational in nature and did not deal with time keeping with sufficient particularity - Using diaries, applicant produced different calculation from respondent - Authority satisfied respondent's calculation more robust and more consistent with principles that ought to apply - No evidence to support contention diaries were manufactured evidence - Respondent's calculation as robust as circumstances allowed - Applicant to pay whole of monies specified in demand notice
Result: Application dismissed ; Arrears of wages and holiday pay ($2,709) ; Costs to lie where they fall
Lambert v Ericsson Communications Ltd
9 Aug 2006, GJ Wood, WA 113/06, (10 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Redundancy - Applicant put on fixed term assignment in Malaysia - While on assignment offered position with respondent's Swedish division only if respondent agreed to extend applicant's assignment, or applicant took position locally in Sweden - Respondent declined to extend assignment - Applicant did not accept local position - Made redundant and paid in lieu of notice - Authority found redundancy information only by email and phone contact sufficient in circumstances - However, not open to pay in lieu of notice, as no provision for it in employment agreement - Unreasonable notice - Unjustified disadvantage - Open to respondent to refuse assignment extension - Treated applicant as fair and reasonable employer would have while effecting dismissal - Redundancy inevitable - Dismissal justified - Remedies - Actions in relation to payment in lieu had no negative impact on applicant, only hurt was lost remuneration - PENALTY - Claimed misled about assignment policies in breach of good faith - Applicant not misled - No breach - In any event, any breach not sustained or intended to undermine employment agreement - ARREARS OF WAGES AND HOLIDAY PAY - Claimed should have been paid redundancy compensation and holiday pay at level of assignment salary - For purpose of redundancy termination was open to respondent, and was fair and reasonable, to set salary upon repatriation at level based on position prior to assignment - However, holiday pay to be calculated on Malaysian assignment salary in accordance with Holidays Act 2003 - Interest 6 percent - Length of service five years - Information systems manager
Result: Application dismissed (Unjustified dismissal, penalty) ; Application granted (Unjustified disadvantage) ; Arrears of wages (notice period) ; Arrears of holiday pay (Quantum to be determined) ; Interest (6 percent) ; Costs reserved
Taljaard (Labour Inspector) v Valentine Apparel Ltd
21 Nov 2006, R Arthur, AA 351/06, (2 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Applicant Labour Inspector sought arrears of wages on behalf of W - No appearance by respondent - Respondent previously accepted owed applicant 57 hours wages and seven days annual leave - Advised applicant would receive arrears when respondent paid by customer - Applicant was to be paid $11 hour but could only recover minimum wage for unpaid hours worked - Entitled to holiday pay calculated on actual hourly rate - Interest 8.64 percent - PENALTY - Respondent in breach of Minimum Wage Act 1983 and Holidays Act 2003 - Penalty appropriate
Result: Application granted ; Arrears of wages ($584.25) ; Arrears of holiday pay ($665.91) ; Interest (8.64%) ; Penalty ($800)(Payable to Crown) ; Disbursements in favour of applicant ($70)(Filing fee)
Taufa v Lo Contractors Ltd
28 Nov 2006, M Urlich, AA 359/06, (3 pages)
ARREARS OF WAGES AND HOLIDAY PAY - No appearance by respondent - Applicant's unchallenged evidence accepted - No written employment agreement or pay slips - Applicant paid in cash - Claimed repeatedly queried irregular, and often short, payments with respondent - Applicant did not record hours or pay, but had pages from foreman's diary recording hours of work - Applicant had doubts about documents' accuracy but unable to specify concerns - Authority did not have enough information to determine arrears claim - Matter referred to Labour Inspectorate - Authority investigation into issue suspended - UNJUSTIFIED DISMISSAL - Personal grievance raised when respondent served with statement of problem - Requirements of s114 Employment Relations Act 2000 satisfied - Dismissed following exchange with respondent about wages owed and hours worked - Dismissal fell woefully short of expected standards of fair and reasonable employer - Applicant also had health and safety concerns about unsafe conditions of employment - Copy of determination to be referred to OSH - Remedies - Calculation of lost wages suspended pending outcome of Labour Inspectorate's investigation - Length of service five months
Result: Application granted (Unjustified dismissal) ; Compensation for humiliation etc ($6,000) ; Reimbursement of lost wages (3 months)(Calculation of quantum suspended) ; Application suspended (Arrears of wages and holiday pay) ; Orders accordingly ; No order for costs
Twagirimana v Metro Motor Holdings Penrose Ltd
16 Oct 2006, D King, AA 320/06, (2 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Applicant claimed annual leave and one week's wages - Identity of employer - Applicant advised employment terminated - Commenced employment with company ("G") believing was continuation of employment with respondent - Termination letter showed was new employment with different employer - Employment with respondent ceased before date for which wages claimed - G liable if wages owed - Could make no determination on wages since present proceedings against respondent - Holiday pay not paid on termination - Holiday pay due and owing - Interest 9 percent
Result: Application dismissed (Arrears of wages) ; Application granted (Arrears of holiday pay)($480.15) ; Interest (9 %) ; Disbursements ($70)(Filing fee)
Wilson (Labour Inspector) v Dey Street Management Ltd
8 Nov 2006, J Scott, AA 341/06, (2 pages)
ARREARS OF HOLIDAY PAY - Applicant Labour Inspector sought to recover holiday pay on behalf of two former employees of respondent - No appearance by respondent - In previous communication respondent had not disputed amount owed - Arrears due and owing - Interest 8.5% - COSTS - Applicant entitled to filing fee - Hostel managers
Result: Application granted ; Arrears of holiday pay ($5,732.51)(KO) ; ($2,561.56)(DO) Disbursements in favour of applicant ($70)(Filing fee)
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