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David O'Neill Contracting Ltd v Labour Inspector (Henning)
16 Apr 2008, P Cheyne, CA 41/08, (6 pages)
PRACTICE AND PROCEDURE – Applicant lodged objection to respondent Labour Inspector’s demand notice – Demand notice sought payment of annual and statutory holiday pay – Applicant’s first ground of objection that proportion of holiday pay paid on “pay as you go” basis during employment - Authority found s28 Holidays Act 2003 (“HA”) provided four conditions must be satisfied – Firstly, Authority found employee (“G”) not employed on fixed term agreement nor was work so intermittent or irregular that impracticable for G to receive annual holidays – Secondly, Authority preferred G’s evidence that no arrangement for holiday pay to be included with regular wages, even if oral agreement legally permissible – Thirdly, found holiday pay not identifiable component of G’s pay – Fourthly, condition requiring payment at correct rate of holiday pay also not met – Authority found employment outside limited circumstances where regular payment of holiday pay permitted, so G entitled to holiday pay under s28(4) HA – G later signed written employment agreement (“EA”) – Applicant claimed agreement shown by handwritten clause on last page stating hourly rate included 6 percent holiday pay – Respondent produced G’s copy showing no such clause – Authority found even if EA was evidence of agreement for “pay as you go” holiday pay, first condition of s28 HA not met because G permanently employed on regular basis – First ground of objection failed – Second ground of objection that any holiday pay incorrectly paid during employment could be treated as overpayment, and clause in CA permitted deduction of overpayments from wages owed at end of employment – Authority found argument fundamentally at odds with objects and specific provisions of HA, and cannot contract out of HA – Second ground rejected – Applicant ordered to pay Labour Inspector sum set out in demand notice
Result: Application dismissed ; Arrears of holiday pay ($9,271.56) ; Costs reserved
Hellyer v Associated Insulation Materials Ltd and Anor
28 Feb 2008, M Urlich, AA 64/08, (4 pages)
PRACTICE AND PROCEDURE – Identity of employer – Respondent argued individual employment agreement (“IEA”) named Tycab Australia Pty Ltd (“Tycab”) as employer – Tycab and respondent groups under same Australian parent company – Applicant signed IEA but claimed did not notice Tycab named as employer – IEA not signed or executed by employer – Applicant claimed employed to manage respondent company, primary workplace was respondent’s offices, respondent employed all other staff, respondent paid salary, payslips headed with respondent’s name and IEA provided for holidays to be governed by New Zealand (“NZ”) legislation – No submissions for respondent regarding identity of employer – Authority found Tycab employer – Found letter to applicant during employment not notice that employment to transfer to third party, but merely that reporting relationship to change - JURISDICTION – No express selection by parties of relevant law – Found that by implication, parties selected NZ law to govern employment relationship - IEA used NZ legal terminology, selected NZ holidays legislation and no features of IEA indicated governed by any other law – Agreement entered into in NZ – No subsequent conduct of parties indicated intention to apply Australian law – NZ also forum conveniens – Respondent had commercial presence in NZ and no inconvenience to respondent which would outweigh matter being heard in its natural forum of NZ
Result: Questions answered ; Costs reserved
Morgan v The Chief Executive of the Department of Corrections
18 Feb 2008, D Asher, WA 21/08, (11 pages)
PRACTICE AND PROCEDURE – Application for removal to Employment Court (“EC”) - Applicant claimed unjustifiably suspended – Sought urgent removal to EC on ground that important question of law central to resolution – Respondent argued suspension justified and opposed removal to EC – Respondent issued letter to applicant setting out allegations – Allegations at time of investigation meeting related to misappropriation of gym funds and misuse of department vehicle – Applicant placed on special leave with pay while respondent considered whether suspension appropriate during respondent’s investigation – Applicant called to meeting following week where suspended on full pay while allegations investigated - Applicant claimed important question of law arose as to employer’s right to suspend where employment agreement did not provide for suspension – Authority accepted respondent’s submission legal position clear that express contractual provision not required in order to suspend employee on pay while conducting investigation – No important question of law to be answered – Application for removal declined – UNJUSTIFIED DISADVANTAGE – Authority found express contractual provision not legally required to suspend applicant on pay while conducting investigation – Applicant aware respondent’s human resources policy allowed for suspension – Found respondent complied with policy – Fair process followed at suspension meeting and afterwards – Respondent properly regularly reviewed decision to suspend – Seriousness of allegations and applicant’s managerial position meant applicant’s presence may have hampered respondent’s investigation – Continuing suspension reasonable considering necessary protection of applicant, other staff, inmates and visiting members of public to prison – Found employers entitled to inquire into conduct of employee clubs – Respondent’s six month investigation lengthy but not unjustified – No evidence to support applicant’s claim of disparity of treatment or that respondent pursuing agenda against applicant – Suspension was and remained justified - Prison unit manager
Result: Application dismissed ; Costs reserved
Patterson v Goh Banner Concepts Development Ltd
7 Feb 2008, R A Monaghan, AA 32/08, (10 pages)
PRACTICE AND PROCEDURE – Identity of employer – JB minority shareholder in respondent and G director and majority shareholder – JB argued attended investigation as witness for respondent and “to protect G” – Authority thought necessary considering JB’s perception of role to clarify whether issue existed as to identity of employer – Authority found no ground on which proposition that respondent not applicant’s employer could be disputed – No allegation JB employer party in personal capacity – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant’s mother sought JB’s help as applicant suffering from depression – JB created role for applicant where applicant to help in construction of JB’s wife’s house – Conflicting evidence whether JB knew before or after employment relationship began that applicant suffered from sleep apnoea – JB became concerned about applicant’s numerous absences from work – Applicant claimed proposal made by JB to reduce hourly rate and working days – Also claimed JB made various derogatory comments about applicant’s ability to work – JB denied telling applicant if offer rejected would “have to go” – Next day applicant rejected proposal – JB made second offer reducing applicant’s pay – Applicant claimed when offer refused JB became angry and abusive – On same day applicant contacted JB and stated would not return to work – JB denied making abusive statements, however, Authority found JB’s tone consistent with demeanour and tone exhibited at investigation meeting – Authority accepted applicant’s account of evidence – Authority found JB attempted to bully applicant into accepting reduced rate of pay, reduced role or both – Found bullying included threats about continued employment and quality of working life – Found applicant could not continue employment under those circumstances – Constructive dismissal – Authority accepted high level of absences from critical position, however, JB not entitled to attempt to browbeat applicant regarding terms of employment – REMEDIES – Authority found applicant’s actions contributed to situation giving rise to grievance but not sufficiently blameworthy to warrant reduction of remedies – Found applicant could not help fact was ill and not responsible for way JB addressed matter – Applicant claimed because of sleep apnoea ability to obtain alternative employment limited – Medical evidence provided to Authority indicated sleep apnoea did not prevent applicant from mitigating loss by finding alternative employment – Authority not satisfied applicant’s loss caused by personal grievance to any significant degree – Four weeks reimbursement of lost wages appropriate – Authority found $3500 compensation appropriate given injury to applicant’s feelings and loss of self esteem – Builder/Foreman
Result: Application granted ; Reimbursement of lost wages (4 weeks) ; Compensation for humiliation etc ($3500) ; Costs reserved
Rezqallah v Dental World (NZ) Ltd (in Liquidation)
8 Dec 2008, R Arthur, AA 414/08, (4 pages)
PRACTICE AND PROCEDURE – Respondent in voluntary liquidation – Consent from liquidators required to continue proceedings under s248(1)(c) Companies Act 1993 (“CA”) – Liquidators had not responded to Authority’s questions – Authority contacted consultant in liquidator’s firm – Consultant stated liquidators not in position to agree or disagree with applicant continuing proceedings against respondent because had not determined extent of funds for distribution – Authority considered that after six month wait, effectively was statement that liquidators did not agree – Authority found s248(1)(c) CA required positive act of agreement if proceedings are to be allowed to continue – Silence or equivocation not enough – Could not proceed to investigate and determine matter, including issue of employment status – Authority found could not dismiss claim nor do anything more about it
Result: Orders made ; Costs reserved
Smith v Dannevirke High School
14 Feb 2008, J Crichton, WA 17/08, (11 pages)
PRACTICE AND PROCEDURE – GOOD FAITH – Earlier determination where parties settled all matters and Authority issued consent order – Applicant claimed respondent procured applicant’s agreement to settle employment relationship problem through dishonest practices or bad faith – Respondent argued applicant’s claims amounted to vexatious litigation – Applicant discovered name reported to Teachers Council (“TC”) – Applicant claimed if had knowledge was to be reported to TC would not have settled or settled under same terms – Respondent argued applicant reported to TC because required when employment terminated in certain circumstances – Applicant claimed “tricked” into settlement when respondent should have known importance of report to TC – Respondent argued statutory obligation to report to TC not negotiable and applicant, as professional teacher, would have known of professional obligations to TC – Respondent further argued report to TC was subject of extensive discussion and notification between parties – Authority found on evidence letter of notification to TC after mediation process unsuccessful – Authority satisfied respondent’s advocate told applicant’s advocate advised TC prior to settlement – Respondent’s advocate’s evidence preferred – Authority did not accept respondent’s argument that applicant knew or ought to have known of statutory obligation to notify TC – Authority found respondent met obligation to advise applicant that TC informed – UNJUSTIFIED DISADVANTAGE – Applicant claimed respondent’s observations at school prize giving breached confidentiality provisions of settlement agreement – Authority found respondent’s observations ill advised and breached clause in settlement agreement – Respondent argued applicant also breached settlement agreement by making information available to news media – Authority found both parties breached settlement agreement – Authority did not think penalty approach necessary or sensible – Authority concluded breaches in effect balanced each other out and not activated by bad faith or malice – Application dismissed – Teacher
Result: Application dismissed ; Costs reserved
X v Y Ltd
30 Jan 2009, R A Monaghan, AA 28/09, (2 pages)
INJUNCTION – Applicant sought interim declaration and orders – Application heard under urgency – Balance of convenience likely to favour respondent provided relevant aspects of undertaking implemented - Application for interim declaration and orders declined - PRACTICE AND PROCEDURE – Authority made order prohibiting publication of identities of parties
Result: Application dismissed (interim injunction) ; Orders made ; Costs reserved
Yang v Allen
28 Feb 2008, V Campbell, AA 63/08, (4 pages)
PRACTICE AND PROCEDURE – Identity of employer – In earlier determination Authority found respondent unjustifiably dismissed – Applicant sought reopening of investigation on grounds that proper employer in earlier determination not applicant personally but company (“LS Ltd”) – Authority granted application for re-opening on basis possibility of miscarriage of justice if question not answered – Applicant claimed poor English reason did not effectively communicate to Authority in lodging earlier claim who actual employer was – Authority noted failure to notify or make employee aware not conclusive in determining this type of case – Applicant claimed respondent knew identity of employer from bank statements and registration of premises certificate displayed at workplace – Authority found applicant’s evidentiary documents of limited probative value as no evidence respondent viewed documents – Respondent argued employment agreement (“EA”) identified employer as applicant personally, however, no EA available for Authority to view – Authority satisfied documentation provided identified applicant as operating business at all times as limited liability company – Authority found no evidence to show respondent had seen or heard any reference to LS Ltd during employment – Authority accepted respondent’s undisputed evidence that EA signed identified employer as applicant and not LS Ltd – Authority found even if applicant intended that respondent be employed by LS Ltd likely that existence of LS Ltd never disclosed to respondent – Authority confirmed orders made in Allen v Yang unreported, V Campbell, 28 February 2008, AA 63/08
Result: Orders made ; Costs reserved
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