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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)
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)
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