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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)
NZ Amalgamated Engineering, Printing & Manufacturing Union Inc and Ors v Carter Holt Harvey Ltd
26 Apr 2007, D King, AA 122/07, (7 pages)
BREACH OF CONTRACT - DISPUTE - Applicants contend respondent breached individual employment agreements ("IEAs") of second and third applicants by failing to comply with requirement to accord priority for re-employment after they were made redundant - Applicants not appointed to vacancy as respondent considered did not have required skills and priority period had lapsed - Applicants' IEAs included obligation to provide re-training and no time limit on priority - Respondent submitted changes to re-employment provisions in subsequent collective employment agreements ("CEAs") applied retrospectively to applicants, despite fact not covered by bargaining - Rights created under IEA not forfeited by subsequent CEA to which holders of those rights not party - Could not legitimately impose variations on applicants - Respondent breached applicants' IEAs by failing to give them priority and by failing to give training to overcome any skill deficit - Respondent ordered to comply with IEAs - PENALTY - Applicants claimed respondent wilfully attempted to appoint someone other than second and third applicants to vacant position after being notified of claim for compliance - Making permanent appointment in circumstances where rights of parties at issue not conducive to maintaining good employment relationship with any of applicants - Breach of duty of good faith - However, no penalty awarded as respondent genuinely believed position correct and agreed last minute to leave reappointment issue in abeyance until matter determined
Result: Application granted ; Orders accordingly ; Costs reserved
Turchie v Prestige Ltd
26 Apr 2007, P R Stapp, WA 62/07, (11 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - After period as temporary employee applicant appointed to permanent position - Performance concerns raised by manager - At subsequent meeting applicant alleged manager offered her exit package or she would face disciplinary proceedings which would result in her leaving anyway - Applicant left premises and did not return - No contact between parties and respondent continued to pay applicant for next two weeks - Respondent submitted applicant resigned when further performance issues raised - Respondent denied making exit offer and wanted applicant to return to work - Later asked applicant to sign standard resignation letter if wished to pursue decision to leave - Both parties had contacted original temp agency for help - Attempt by respondent to settle what it considered misunderstanding declined by applicant as not looking to return to workplace - Credibility finding in favour of respondent - Ulterior motive to replace applicant not established - Applicant had not proved faced with choice to resign or be dismissed - Raising performance concerns with applicant not unjustified - Respondent not responsible for applicant's decision to leave and its actions after she left consistent with desire to retain her - Applicant could have approached problem in constructive manner instead of raising personal grievance - Applicant resigned - No dismissal - PENALTY - Respondent failed to provide written employment agreement - Penalty appropriate - However, failure did not cause or contribute to employment relationship problem and respondent had arrangements in place for new employees to be provided with agreements - Penalty at lower end of scale ordered
Result: Application dismissed (Dismissal) ; Application granted (Penalty) ; Penalty ($500)(Payable to Crown) ; Costs reserved
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