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Bettridge v Whitehead t/a Kauri Coast Honey and Ors
5 Apr 2007, R Arthur, AA 104/07, (4 pages)
ARREARS OF WAGES - Applicant sought compensation for lost earnings due to work related accident - Respondents filed statement of reply but effectively refused to participate or respond to resolve problem - No appearance by respondent - Authority satisfied had jurisdiction to consider claim as wage recovery action - No written employment agreement meant employer difficult to identify - Identity of employer - Statement of problem identified trust as employer - Authority joined ("W") as respondent - Employer properly notified of investigation and given adequate opportunity to prepare, or advise of any impediment to attend - Respondents suggested applicant not incapacitated by injury, however, no evidence to contest ACC findings - Under IPRC ("Injury Prevention, Rehabilitation and Compensation Act 2001") lost earnings aggregate of all earnings seven days immediately before commencement of incapacity, whether or not payable by employer where injury occurred - Applicant entitled to compensation for earnings lost in first week of incapacity and included earnings from second job - Respondents jointly and severally liable for amounts owed to applicant
Result: Application granted ; Arrears of wages ($602.80) ; Interest (9.91%) ; Disbursements ($70)(Filing fee)
Culhane and Anor v Planz College Ltd
23 Apr 2007, M Urlich, AA 117/07, (3 pages)
ARREARS OF WAGES AND HOLIDAY PAY – Applicants claimed owed arrears after made redundant – Authority set out its understanding of situation in minute - Requested respondent contact it if understanding incorrect – No response received – Arrears due and owing
Result: Application granted ; Arrears of wages ($1,540)(AC) ; ($1,300)(MY) ; Arrears of holiday pay ($2,307.69)(AC) ; ($1,730.76)(MY) : Disbursements in favour of applicant ($70)(Filing fee)
Denyer (Labour Inspector) v Alex Food Catering Ltd
23 Apr 2007, M Urlich, AA 118/07, (2 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Applicant Labour Inspector sought to recover outstanding wages and holiday pay on behalf of employee - Respondent claimed employee not paid as "didn't do a good job" - Not adequately completing duties no basis for withholding payment of minimum statutory entitlements - Arrears due and owing - Interest 7%
Result: Application granted ; Arrears of wages ($293.81) ; Arrears of holiday pay ($32.23) ; Interest (7%) ; Disbursements in favour of applicant ($70)(Filing fee)
Dominion Trading Company Ltd v Jane
30 Jan 2007, P Cheyne, CA 9/07, (2 pages)
RECOVERY OF MONIES - Applicant sought to recover two weeks wages in lieu of notice of termination, plus cost of overalls it supplied to respondent - No appearance by respondent - Satisfied notice of direction and investigation properly served on respondent - Respondent forfeited two weeks wages for failing to give notice - Respondent breached employment agreement by failing to return overalls supplied to him - Respondent obstructed Authority's investigation and did not act in good faith
Result: Application granted ; Monies owed ($1,077.53) ; Damages ($100.00)
McFarlane v Charlie's Trading Company Ltd
13 Apr 2007, L Robinson, AA 108/07, (20 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Applicant alleged bonus due and owing, - Bonus payable if applicant met key performance indicators ("KPI's") - Applicant received bonus first year - Applicant claimed same bonus for subsequent year, but respondent declined payment - Bonus clause required parties to negotiate KPI's - Managing director ("MD") used results of performance review to measure bonus - Nothing prescribed about how KPI's applied to bonus entitlement - Respondent had prerogative to determine quantum according to agreed criteria - Applicant disagreed with measurement and made this clear to MD - MD elected to ignore applicant - Respondent's failure to communicate rejection of applicant's view not responsive or communicative, and contrary to duty of good faith and implied terms of employment - Inaction and failure to negotiate caused loss of opportunity - Authority commented on loss of chance principles - Entitled to compensation for loss of full year, and quarterly bonus entitlement - Parties to agree on quantum of quarterly bonus and holiday pay entitlement - Also claimed requirement to return company car before commenced annual leave unjustifiable - Entitled to car at all times as long as personal use was reasonable - Entitled to reimbursement for loss of use while on leave - RAISING PERSONAL GRIEVANCE - Alleged grievances related to discrimination, stress, and treatment during pregnancy raised out of time - No exceptional circumstances - Sales manager
Result: Application granted ; Arrears of wages ($18,000)(Full year bonus) ; (Quarterly bonus to be calculated by parties) ; Loss of benefit ($2,000)(Car) ; Arrears of holiday pay (Quantum to be calculated by parties) ; Leave reserved for parties to return to Authority for ; Costs reserved
National Distribution Union v Arthur Barnett Ltd
27 Mar 2007, J Crichton, CA 29/07, (6 pages)
DISPUTE - Interpretation of overtime provision in collective employment agreement ("CEA") - Whether overtime triggered on daily or weekly basis - Applicant's analysis preferred, meant phrase "on a daily basis" made sense in context of clause as whole - Overtime accrued each day - Construction clear from words - Overtime provision in CEA wrongly applied by respondent - COMPLIANCE ORDER - ARREARS OF WAGES - Applicant sought compliance order to remedy default, and arrears - Respondent argued application not suitable for compliance order - In reality matter a dispute - Respondent resisted paying arrears as applicant not diligent in progressing claim - Argument had some force - With exception of two year "error period", respondent's interpretation had applied since 1992 - Parties to engage with each other to determine consequences of decision - Leave reserved to return to Authority if matters not resolved
Result: Question answered in favour of applicant ; Costs reserved
Nelson v Hickory Bay Ltd
12 Apr 2007, J Crichton, CA 38/07, (6 pages)
ARREARS OF WAGES AND HOLIDAY PAY – Identity of employer - IRD summary of earnings showed, with exception of brief interregnum, employed by respondent - During interregnum employed by company associated with respondent - Respondent employer for all practical purposes - Disagreement over applicable employment agreement - Parties discussed new terms and conditions and unsigned employment agreement given to applicant included substantial pay increase - Applicant's claim proposed agreement required increased entitlements to be backdated unsustainable - If applicant wanted to rely on new agreement, should have signed it - Also, not respondent's intention for term of agreement to be construed so as to entitle applicant to backdated benefits - No arrears of wages owing - Contractual term stated holidays should be taken in year fell due - Clause also said respondent could specify leave period if parties did not agree, and leave forfeited in still not taken – Second part of clause void and severable - Breached Holidays Act 1981 - Also, no evidence respondent ever specified leave period - Reliance on forfeiture provisions misconceived - Agreement also stated applicant remained responsible for operations while on leave and required to arrange for responsibilities to be met - Unreasonably limited ability to take leave - Unfair of respondent, if not for restrictive nature of clause applicant would have taken leave and not been subject to purported forfeit - Arrears of holiday pay due and owing - Farm manager
Result: Application granted in part ; Arrears of holiday pay ($5,419) ; Interest 7% ; Costs reserved
Pringle v Active Planet Ltd
12 Apr 2007, J Crichton, CA 39/07, (5 pages)
ARREARS OF WAGES - Respondent alleged arrears owed by predecessor company and applicant contractor not employee - However, prepared to pay lesser sum when funds allowed - No appearance by respondent at investigation meeting - Piece work pay arrangement - Applicant adamant paid piece rate for each journey and respondent responsible for PAYE - Applicant conceded arrears owed by predecessor company - However, claimed respondent's director committed to take over debt - Consistent with material filed by director - Portion of debt owed by predecessor already met by respondent, confirmed intention to meet obligations of predecessor - Authority contacted director, who indicated not responsible for PAYE as not employment relationship and would contact IRD - Authority satisfied piece work employment and preferred applicant's evidence as to responsibility for tax - Applicant's schedule of payments owing accepted - Claim made out for payment of wages by respondent notwithstanding applicant never an employee - Arrears due and owing - Respondent to account to IRD for PAYE
Result: Application granted ; Arrears of wages ($3,080)(net) ; Costs to lie where they fall
Sara v D H Bull (1988) Ltd
30 Mar 2007, P Cheyne, CA 34/07, (7 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant claimed respondent breached apprenticeship agreement - Director originally agreed to be assessor - Later changed mind and prevented appointment of another assessor - No breach of duty - Director would not allow tutor to visit during work hours - Being difficult in response to deteriorating relationship - Breach of duty - However, not sufficiently serious to make resignation reasonably foreseeable - Director dissatisfied with applicant's work - Told him to re-evaluate position with respondent - Did not amount to ultimatum - Applicant found new position and resigned - Gave evidence would not have resigned until had other work - Led to conclusion conduct not dismissive - Applicant also claimed respondent's refusal to pay for upcoming course amounted to breach of duty - Could not claim constructive dismissal in anticipation of something that lay well in future - No constructive dismissal - UNJUSTIFIED DISADVANTAGE - No disadvantage arose from preventing tutor's visits - Applicant told to repay respondent full course and manual costs before left - Respondent demanded money or car keys - Conduct angry and abusive - No doubt applicant responded similarly, but responsibility for exchange rested principally with director - Unjustified disadvantage - Remedies - Compensation reflected applicant's comparatively minor contribution to situation - ARREARS OF WAGES AND HOLIDAY PAY - Respondent retained final pay against claim for manual and course fees - Money owing under original fees agreement deducted from arrears owing - Interest 9 percent - PENALTY - Respondent failed to pay arrears even though aware of legal obligations - Circumstances warranted penalty - COSTS - Less than one day investigation meeting - Applicant sought solicitor/client costs of $4,000 - $1,500 award appropriate - Apprentice engineer
Result: Application dismissed (Dismissal) ; Application granted (Disadvantage) ; Compensation for humiliation etc ($1,000) ; Arrears of wages and holiday pay (Quantum to be determined) ; Penalty ($1,000)(payable to Crown) ; Costs in favour of applicant ($1,500)
Tan v United Media (NZ) Ltd
14 Mar 2007, R Arthur, AA 71/07, (4 pages)
ARREARS OF WAGES - Applicant claimed arrears of wages for several months - Respondent agreed some arrears owing but disputed amount - Applicant's evidence on matter preferred - However, deduction made from total claim as applicant effectively stopped working for respondent last month of claim - Respondent also disputed part of expense claim - Had agreed to pay for Christchurch holiday as bonus but applicant went to Malaysia instead - No offer or agreement for respondent to meet costs of airfares to Malaysia, amount deducted from total claim - Respondent had agreed to pay "10% penalty" on arrears and Authority accepted it as part of total owed to applicant - Arrears due and owing - Respondent sought to pay by instalments - No information as to financial position - Authority not satisfied order for payment by instalments required - Applicant entitled to three months interest as no real dispute owed considerable amount during that time - "Penalty" payment agreed by parties excluded from calculation - Interest 8.88 percent - BREACH OF CONTRACT - Counterclaim - Respondent sought damages and penalty for breach of good faith - On balance, possible applicant deliberately "took down" website - However, respondent had not substantiated actions or provided evidence of actual damage - No further enquiry into damages or order for penalty - Authority recorded oral order made at investigation meeting requiring applicant to return respondent's property - Graphic designer
Result: Application granted ; Arrears of wages ($10,784) ; Other monies ($3,604) ; Interest (8.88%) ; Disbursements ($70)(Filing fee)
Tu'inukuafe v Fuima'ono
27 Mar 2007, D King, AA 94/07, (2 pages)
JURSIDICTION - Whether employee or independent contractor - No appearance for respondent - No written employment agreement - Respondent contracted to courier company - Triangular relationship - Applicant claimed employed to drive respondent's courier van and was no discussion about being contractor - Claimed uniform and petrol supplied by respondent, and did not provide invoices - Not in business on own account - Instructed and paid set rate - Employee - ARREARS OF WAGES - Applicant not paid wages except for one payment - Wages due and owing - Interest 7.9 percent
Result: Application granted ; Arrears of wages ($1,320) ; Disbursements in favour of applicant ($70)(Filing fee)
Wirihana v Alawaya Cartage Ltd
14 Mar 2007, Y Oldfield, AA 69/07, (6 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Serious misconduct - Applicant's truck hit parked car on delivery run - Applicant claimed unfair unpaid suspension forced him to resign - Applicant initially told respondent he was driving at time - Subsequently admitted allowed assistant "off-sider" to drive truck, had accident, and did not stop at scene - Knew assistant did not have licence - Applicant claimed agreed to continue story was driving at time of accident, but changed mind - Managing director ("MD") instructed applicant be suspended and not paid final pay until MD returned from holiday - Applicant resigned - Employment agreement stated insurance excess recoverable from applicant if damage resulted from negligence or wilful act - Suspension made so matter could be dealt with MD when returned - Not reasonable to make applicant wait three weeks without wages without knowing fate - Entitled to fair, complete process and timely answer - Unpaid suspension serious breach of employment agreement - Untenable for applicant to remain at respondent - Constructive dismissal - Dismissal at time of suspension could not have been justified - Not put to applicant that actions serious misconduct or might justify dismissal - Respondent did not have all relevant information - Actions not those of fair and reasonable employer - Remedies - Applicant permitted unlicenced driver to take wheel of vehicle in his care - Contributory conduct 50 percent - UNJUSTIFIED DISADVANTAGE - Applicant claimed disadvantaged when pressured to lie about accident - Supervisor sanctioned suggestion applicant lie about accident - Sanctioning amounted to unjustified action - Unjustified disadvantage - No contributory conduct - ARREARS OF WAGES - Applicant claimed payment in lieu of notice - Entitled to payment in full in accordance with employment agreement - Truck driver
Result: Application granted ; Arrears of wages ($1,530)(Notice) ; Reimbursement of lost wages ($3,968.99 reduced to $1,984.44) ; Compensation for humiliation etc ($6,000 reduced to $3,500)(Unjustified dismissal); ($500)(Unjustified disadvantage) ; Costs reserved
Yates v Owaikura Holdings Ltd t/a Pratts Plumbing Ltd
14 Mar 2007, V Campbell, AA 73/07, (5 pages)
ARREARS OF WAGES - Alleged unlawful deductions - Respondent made deductions for personal purchases and missing tools from applicant's final pay - Claimed entitled to make deductions under employment agreement on termination - Applicant gave required notice - Some items purchased for personal use and lawfully deducted - Applicant denied losing tools - Authority satisfied apprentice applicant worked with lost tools - No reasonable basis for concluding applicant responsible for missing tools - Respondent had applicant's van commercially cleaned - No contractual right or agreement to make deductions for cleaning - Unlawful deductions - PENALTY - Applicant sought penalty for breach of employment agreement and Holidays Act 2003 - Not appropriate case to award penalty - Penalty declined - COSTS - Applicant represented himself - Entitled to filing fee
Result: Application granted ; Arrears of wages ($884.96) ; Application dismissed (Penalty) ; Disbursements ($70)(Filing fee)
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