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DV Ryboproduckt Ltd v The 49 Crew of the MFV "Aleksandr Ksenofonotov'
30 Jan 2007, J Crichton, CA 10/07, (11 pages)
ARREARS OF WAGES - Matter came before Authority last year when applicant alleged respondent crew refused to leave vessel at end of contract of employment, preventing applicant from re-crewing vessel - Crew refused to leave ship because disputed wages calculation - Presence of crew on vessel resolved at mediation - Issues before Authority concerned what contract and terms of employment governed employment relationship and whether deductions from pay were lawful - Authority satisfied it had jurisdiction to hear Wages Protection Act 1983 ("WPA") claim under s103(5) Fisheries Act 1996 - Jurisdiction to hear claim about whether could look at employment agreement (to extent required to deal with wages issues) considered - Crew authorised captain to sign collective employment agreement ("CEA") on their behalf - Dispute over what happened at meeting when CEA discussed - Crew alleged were told deductions would not be taken from wages (unless wrongdoing) - Whether deduction for accommodation and airfares lawful - CEA sought to provide ship owner with option to deduct expenses for travel, daily allowances, food and lodging - Submission that by entering into CEA crew consented in writing to deductions not accepted - Explicit informed consent required, opposed to consent by default as in present case - Authority impelled to that view by informal way CEA executed and by its wording, which only conveyed option on employer - Form of execution of CEA (crew being asked to execute schedule the effect of which authorised captain to enter CEA on their behalf) amounted to remote control - Even less likely arrangements could be seen as complying with s5 WPA - Arrangement not saved by s16 WPA since not a CEA in terms of Employment Relations Act 2000 - Deductions unlawful and must be returned to crew - Position different in respect of some wage advances where separate documentation of consent - Orders made confirming agreements parties reached provisionally about wages due and owing to crew - Crew's entitlement to share of catch did not factor into wages calculation for particular voyage - Tax issue outside of Authority's ambit - Whether applicant had right to recover cost of housing two crew members in Wellington while they waited for Authority's decision not within Authority's jurisdiction - Parties' representatives encouraged to resolve application of determination - COSTS - Applicant alleged crew's behaviour put it to additional costs of $100,000 - Also alleged made $600,000 loss on voyage - Application primarily favoured crew - Costs to lie where they fall
Result: Arrears of wages ; Orders accordingly ; Costs to lie where they fall
Harlick v Tournament Parking Ltd
19 Jul 2006, YS Oldfield, AA 246/06, (6 pages)
ARREARS OF WAGES - Triangular employment relationship - Respondent's contract with third party ("MCL") expired and MCL took over operation - Claim for payment in accordance with redundancy arrangement - Respondent did not dispute amount owing but sought to have arrears offset against counterclaim - COUNTERCLAIM - BREACH OF CONTRACT - Restraint of trade - Applicant started at MCL day after termination - Employment agreement with respondent contained six month restraint of trade - Received no remuneration for six months then paid "sign on fee" - Applicant employed by MCL, albeit payment deferred, and breached restraint of trade provision - However, restraint not enforceable as no proprietary interest to protect and no consideration given - Authority not satisfied on balance that breach of confidentiality clause made out - Evidence not sufficient to establish on balance of probabilities applicant acted against respondent's interests - No question of damages being owed to respondent so nothing to offset against arrears claim - Counterclaim dismissed - Car Park Manager
Result: Application granted ; Arrears of wages ($3,230.77) ; Counterclaim dismissed ; Costs reserved
Wilford v Aden Electrical Ltd
19 Jan 2007, J Wilson, AA 12/07, (11 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed subjected to bullying - Asked that he not work with bullying employees - Dispute whether bullying occurred - Applicant obviously distressed - Fair and reasonable employer would and should have undertaken full investigation - Not investigating complaints constituted unjustified action - Unjustified disadvantage - UNJUSTIFIED DISMISSAL - Constructive dismissal - Manager made aware of situation and asked for time to investigate complaints - Applicant on stress leave when resigned - Not at work when resigned, so not at risk - Chose to resign before investigation completed because received offer of employment - Resignation not caused by breach of duty - No constructive dismissal - PENALTY - Applicant requested s4A Employment Relations Act 2000 ("ERA") penalty for breach of duty of good faith - Respondent accepted resignation with immediate effect - Applicant claimed by not being allowed to work notice was discriminated against on grounds had lodged grievance - If respondent did breach duty, breach not deliberate or sustained - No penalty warranted - ARREARS OF WAGES - Money deducted from final pay and due and owing - Length of service one year two months - Electrical apprentice
Result: Application dismissed (Unjustified dismissal, penalty) ; Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($5,000) ; Arrears of wages ($110.02) ; No order for costs
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