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Botes v Hair Smith Ltd
28 Apr 2008, V Campbell, AA 157/08, (2 pages)
ARREARS OF WAGES AND HOLIDAY PAY - No appearance for respondent - No written employment agreement - Applicant employed on commission only basis - Applicant claimed one week’s payment based on income she generated - Applicant entitled to holiday pay as employment relationship ended - Authority calculated holiday pay based on figures supplied by applicant - Respondent ordered to pay applicant $1,588.56 in unpaid wages and holiday pay
Result: Application granted ; Arrears of wages and holiday pay ($1588.56) ; Disbursements in favour of applicant ($70)(Filing fee)
Langton v Sensation Yachts Ltd
12 Feb 2009, V Campbell, AA 44/09, (3 pages)
ARREARS OF WAGES – Applicant claimed outstanding wages and holiday pay – No statement in reply and no appearance by respondent – Authority found respondent had not shown good cause for failure to appear – When applicant had returned from leave, respondent advised was unable to pay wages for past two weeks due to economic conditions – Applicant claimed was later paid for first of two weeks, but not paid since – Authority satisfied wages owing – Respondent had instructed applicant to take eight days annual leave – Respondent reduced leave balance accordingly – Authority found instruction to take leave unfair and unreasonable – Found no consultation with applicant and one day’s notice insufficient – Applicant entitled to receive holiday pay to which became entitled at end of employment relationship – Holiday pay calculated at eight percent of gross earnings
Result: Application granted ; Arrears of wages ($2,804.09) ; Arrears of holiday pay ($2,881.18) ; Disbursements in favour of applicant ($70)(filing fee)
Ranby v Simply Stitches Ltd
18 Feb 2009, L Robinson, AA 55/09, (2 pages)
ARREARS OF WAGES AND HOLIDAY PAY – In previous Minute, Authority directed respondent to provide wage and time records to Authority – No response to Authority’s Minute - No appearance by respondent – Part time employment – Applicant claimed not paid wages for final two weeks of work and for later tutoring – Applicant’s evidence accepted by Authority because unchallenged – Authority found respondent’s director admitted liability in earlier correspondence – Authority found wages and holiday pay owing
Result: Application granted ; Arrears of wages ($1,852.12) ; Arrears of holiday pay ($627.12)
Stevenson v Bentan Twisted Ltd
16 Feb 2009, D Asher, WA 14/09, (13 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE – Applicant claimed respondent’s sole director (“V”) publically alleged on several occasions that applicant responsible for missing money and lost beer – Also claimed V publically demanded applicant return keys - Applicant claimed left workplace as felt unable to stay and was effectively dismissed at this or later point – Applicant’s doctor advised time off work due to stress – Applicant sent V letter suggesting meeting – Applicant received V’s acceptance after meeting date because address on applicant’s medical certificate erroneous – Upon expiry of medical certificates, applicant telephoned respondent to discuss return to work – Applicant advised by co-worker that no longer on roster – Following week, respondent telephoned and was again advised that not on roster – Applicant inferred employment terminated – V argued applicant abandoned employment – V argued did not contact applicant because risked aggravating applicant’s stress and applicant not on roster because possibility that unfit for work – Authority noted if found applicant was dismissed, would follow that dismissal unjustified because no due process or good cause – Authority found respondent’s enquiries and requiring applicant and co-worker to return keys proportionate and legitimate responses to loss of money – Found although applicant embarrassed, respondent’s actions not predetermination, accusation or disciplinary – Authority did not accept respondent deliberately ignored applicant’s communications – Authority accepted V fairly and reasonably restrained from contacting applicant due to concern would aggravate stress – Authority noted applicant did not ask to speak to V, instead erroneously concluding dismissed – Found good faith entailed two-way communication – Found V surprised when told by Work and Income that applicant not employed by respondent, as thought applicant on stress leave – Found applicant’s counsel’s letter alleged unjustified dismissal, rather than enquiring as to employment status – Authority found V’s relative passivity did not amount to deliberate repudiation of employment relationship – No unjustified disadvantage or dismissal - PENALTY – No written employment agreement (“EA”) – Respondent argued intention of s63A Employment Relations Act 2000 (“ERA”) was employee must bring action within year of time aware that not offered written EA prior to orally accepting employment - Authority rejected argument on plain reading of words “reasonably have known” in s135(5)(b) ERA – Also found applicant acted promptly when advised of law - Found absence of written EA did not contribute to applicant’s grievance – Penalty payable to Crown - ARREARS OF WAGES AND HOLIDAY PAY – Parties agreed Labour Inspector to assist arrears claim – Respondent since paid applicant holiday pay for days in lieu, claiming payment out of good conscience, not because conceded monies owed – Authority not satisfied delay in payment was evidence of respondent deliberately attempting to escape obligation, so no penalty imposed – For completeness, Authority directed above arrears be paid to applicant, with interest – Authority found although “pay as you go” holiday pay component specified on payslips, no evidence of agreement for holiday pay to be paid on that basis - Authority obliged to accept applicant’s claim that never agreed to “pay as you go” arrangement and entitled to holiday pay – Parties to agree on quantum with assistance of Labour Inspector – Penalty not appropriate as respondent attempted to meet obligations under Holidays Act 2003 – Authority found Labour Inspector to identify any shortfall leaving parties to settle matter on own terms - Barman
Result: Applications dismissed (Unjustified dismissal)(Unjustified disadvantage) ; Orders made (Arrears of wages and holiday pay) ; Penalty ($500)(Payable to Crown) ; Costs reserved
Wensley Developments Ltd v Boulgaris
20 Jan 2009, L Robinson, CA 5/09, (7 pages)
RECOVERY OF MONIES – Applicant sought to recover overpaid advance commission payments from former employee – Respondent claimed no monies owing because “wrong projections given to induce his employment” – Respondent argued sales lower than expected and unable to earn expected commission – Authority found projections were only forecasts – Individual employment agreement (“IEA”) stated could not rely on pre-contractual terms – Found respondent continued to receive advance payments on commission never earned – Respondent aware was being paid more than was earning – No guarantees in IEA regarding quantum of commission – In letter to applicant, respondent accepted position put to him by applicant - In equity and good conscience, respondent should not be permitted to resile from that acceptance – No merit in respondent’s defences – Monies owing - 6 percent interest
Result: Application granted ; Recovery of monies ($163,635)(Overpayment of commission) ; Interest (6%) ; Costs reserved
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