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Busby v Talent Base Ltd
20 Jul 2006, RA Monaghan, AA 247/06, (6 pages)
PRACTICE AND PROCEDURE - Application to reopen investigation - Respondent claimed out of country and unaware employment relationship problem filed - Disputed amounts awarded to applicant - Background did not make for compelling application to reopen - However, apparent original orders should be amended - Unpaid wages and holiday pay to be recalculated - Qualifying billings for commission reduced by agreement - Written agreement silent about commission for billings in excess of $28,000 - Applying usual approach to interpretation Authority might have accepted no commission payable on those billings - However, commission supposed to provide incentive and lack of further commission was disincentive - Authority did not accept that was parties' intention and no evidence to suggest intended to cap commission - Commission payable on billings over $28,000 at top rate of sliding scale - $7,185 commission payable - Given applicant's acknowledgment of overpayment, parties urged to take pragmatic approach to resolving issue of deductions - Leave reserved if unable to resolve matter - PENALTY - Authority allowed reintroduction of penalty application withdrawn at original investigation, but declined to address additional application for penalties against director personally - Failure to attend to final payment breached employment agreement - Subsequent payment attempt to remedy breach and weighed in respondent's favour - Reason for not paying commission not very compelling - Timely payment of wages too important to allow failure to address matter to go unpenalised - Director inexcusably lax - $2,000 penalty for breach of employment agreement - Authority did not believe actions reached level of deliberate, serious, or sustained breaches of duty of good faith set out in s4A Employment Relations Act 2000 - Declined to order further penalty for breach of good faith - Talent manager
Result: Orders accordingly ; Penalty ($2,000)(Payable to Crown) ; Interest (7.5%) ; Costs reserved
New Zealand Air Line Pilots Association Inc v Mount Cook Airline Ltd
11 Aug 2006, P Montgomery, CA 121/06, (6 pages)
DISPUTE - Applicant sought number of determinations regarding interpretation, application and operation of collective employment agreement ("CEA") - Whether Bangkok Daily Expense Allowance ("DEA") agreed between parties - CEA did not provide DEA for Bangkok - Parties entered temporary arrangement that referred to template used by another airline to set allowances - Issue of good faith raised over template - Respondent may have misrepresented position on possession of template but given applicant had document it said was relevant to issue, scales evenly balanced - Relevance of document over 25 years old exercised Authority's mind considerably - Parties directed to agree to quantum for Bangkok DEA as required by CEA - Respondent entitled to continue to require pilots to depart for and train in Bangkok - Respondent not in breach of CEA in requiring and rostering pilots to depart for Bangkok - Temporary agreement remained in force as no further agreement reached - COMPLIANCE ORDER - Application for order respondent cease requiring and rostering pilots to depart for Bangkok until DEA agreed declined - Application for order requiring respondent to apply agreed process to fix agreed permanent DEA declined - Both parties to resolve quantum issue - PENALTY - Penalties for breach of CEA and good faith obligations declined
Result: Orders accordingly ; Application dismissed (Compliance order and penalty) ; 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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