EMPLOYMENT CASES SUMMARY March 2008 - NZ Department of Labour

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Chang v Timeforall International Group Ltd

3 Apr 2007, L Robinson, AA 99/07, (4 pages)
UNJUSTIFIED DISMISSAL - No appearance by respondent - Applicant presented with letter purporting to change position from part time to casual - Applicant made it clear she did not accept change - Respondent persisted in offering applicant wages in lieu of notice in consideration for departure but she rejected offers - However, when became clear respondent did not want her to return she stopped going to work - Despite statement she would be called for casual work applicant never contacted again - Applicant's unchallenged evidence accepted - Letter constituted sending away - Applicant initially rejected repudiatory conduct but by subsequently not returning to she accepted it - Employment came to end at respondent's initiative and applicant did not consent to it - No fair process or substantive justification - Dismissal unjustified - ARREARS OF HOLIDAY PAY - Due and owing - Sales

Result: Application granted ; Reimbursement of lost wages ($4,560) ; Compensation for humiliation etc ($5,000) ; Arrears of holiday pay ($510.78)

Denyer (Labour Inspector) v Vitality Juice Bar Ltd

2 Aug 2007, M Urlich, AA 231/07, (3 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Applicant Labour Inspector sought to recover outstanding wages and holiday pay on behalf of two former employees - No appearance by respondent - In absence of records from respondent, applicant calculated claim on best information available, that provided by employees - Applicants calculations accepted - Arrears due and owing - PENALTY - Sought penalty for failure to provide wage, time and holiday records when requested - $2,000 penalty appropriate

Result: Application granted ; Arrears of wages ($635.50)(HP) ; ($686.75)(SJ) ; Arrears of holiday pay ($138)(HP) ; ($120)(SJ) ; Penalty ($2,000)(Payable to Crown) ; Disbursements in favour of applicant ($70)(Filing fee)

Mathieson v Kaituna Pastoral Farms Ltd

23 Apr 2007, R A Monaghan, AA 116/07, (18 pages)
UNJUSTIFIED DISADVANTAGE - Respondent had number of concerns about applicant's performance - Applicant not promoted to manager as promised - However, failure justified to extent it took into account his unwillingness to carry out full range of managerial duties - Respondent did not seek response from applicant before issued performance warning, although applicant should not have been so dismissive of respondent's earlier informal approach - Seriously flawed procedure - Entitled to $3,000 compensation - Not persuaded promotion would have gone ahead but for warning and associated concerns - No further award appropriate - No basis for allegation applicant "harassed" to sign new employment agreement - Applicant also claimed disadvantaged when leave request granted and later withdrawn - Authority not persuaded amounted to disadvantage grievance - UNJUSTIFIED DISMISSAL - Constructive dismissal - Parties and representatives met to discuss employment problems - Suggestion applicant draft job description reasonable starting point for addressing issues - Applicant took view because unsuccessful in negotiating exit package during meeting matters at stalemate and employment over - Applicant became disruptive and uncooperative - Failed to respond to respondent's queries over several weeks or provide job description discussed at meeting - Further meeting resulted in applicant being demoted and required to report daily to manager - Applicant considered demotion a repudiation of employment agreement and resigned - Demotion repudiatory conduct - Circumstances amounted to dismissal - However, respondent had gone as far as it could in attempting to resolve issues between parties - Reasonable grounds to conclude applicant could not continue in role - Dismissal justified - ARREARS OF WAGES AND HOLIDAY PAY - Parties agreed applicant owed wages and holiday pay - Interest 7.9 percent - RECOVERY OF MONIES - Authority not persuaded parties agreed on costs associated with dogs or phone rental - Unclear how purchase of farm bike would be recognised - Applicant received higher salary than agreed and likely increase recognised purchase - No entitlement to additional payment - Applicant attempted to claim bonus on behalf of other staff - Not authorised to do this and no order made - Farm manager

Result: Application granted (Disadvantage, arrears) ; Compensation of humiliation etc ($3,000) ; Arrears of wages and holiday pay (Quantum to be determined) ; Interest (7.9%) ; Application dismissed (Dismissal, recovery of monies) ; Costs reserved

Nataniel v Golf Management and Consultancy Ltd

8 May 2007, M Urlich, AA 141/07, (5 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Applicant not paid at agreed rate in employment agreement - Respondent alleged parties agreed to reduce number of days applicant worked each week and salary reduced proportionately - No convincing argument agreement changed - Respondent to pay applicant at rate agreed in employment agreement - Authority not satisfied respondent appreciated consequences of not commenting on applicant's calculation of amount owing - Given 14 days to file own calculation if desired - Respondent accepted Labour Inspector's calculation of holiday pay correct - However, claimed entitled to deduct 70 hours from final pay for unauthorised leave taken during employment - Alleged applicant took five days sick leave without providing medical certificate - Sick days taken individually so applicant not required to produce medical certificate - No basis to recover payments for sick days lawfully taken and paid - Other than notations on attendance record no documentary evidence of other leave alleged applicant took - Record fell short of statutory requirements for holiday and leave record - Insufficient evidence to support respondent's claim applicant took annual leave as claimed - No lawful basis for deductions from holiday pay - Arrears due and owing

Result: Application granted ; Arrears of wages and holiday pay (Quantum to be determined) ; Disbursements in favour of applicant ($70)(Filing fee)

O'Neill v Kamo Labour Ltd

15 Oct 2007, L Robinson, AA 321/07, (4 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought one week's salary and holiday pay - Respondent did not dispute owed applicant some money - However, sought direction as to whether Authority would permit deductions from sums owing - Respondent alleged applicant did not give requisite notice of termination - No evidence respondent objected at the time or intended to require applicant to forfeit salary - Arrears due and owing

Result: Application granted ; Arrears of wages and holiday pay ($2,393.93) ; Disbursements ($70)(Filing fee)

Philpott v Phoenix Risk Management Ltd

31 Jan 2008, J Crichton, CA 9/08, (2 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought unpaid salary and associated expenses - Respondent admitted money owed but unable to pay due to cash flow issues - Arrears due and owing

Result: Application granted ; Arrears of wages and holiday pay ($17,386.92) ; Expenses ($331.19) (Telecom costs) ($698.08) (Credit card reimbursement) ; Disbursements ($70) (Filing Fee); Costs to lie where they fall

Tregoweth v Albert Number Six Ltd

14 Sep 2007, V Campbell, AA 286/07, (4 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Dispute about number of hours applicant worked in manager's absence - Applicant initially paid for hours she claimed - Manager subsequently decided applicant overstated hours and deducted 17 hours from final pay - Respondent also deducted two days pay for failure to give notice - Applicant had not consented to deductions - Deductions unlawful - Arrears due and owing - RECOVERY OF MONIES - Counterclaim - Respondent also deducted PAYE that it claimed related to "management fee" previously paid to applicant - On balance of probabilities more likely than not management fee a gross amount - Liability for payment of tax responsibility of tax-payer - As matter of convenience PAYE deducted at end of employment - Money remitted to IRD on applicant's behalf and respondent entitled to be recompensed for it - Sums owing to applicant to be off-set by amount of PAYE attributable to management fee - Cleaner

Result: Application granted ; Arrears of wages ($397.50) ; Arrears of holiday pay ($792.96) ; Counterclaim granted ; Recovery of monies (Quantum to be determined) ; Disbursements in favour of applicant ($70)(Filing fee)