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Farmer v Advance International Cleaning Systems (NZ) Ltd
28 Mar 2007, PR Stapp, WA 46/07, (8 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or abandoned employment - After lengthy period of unpaid sick leave, applicant worked one day then did not return - Received letter stating respondent could no longer hold position open - Later applicant told could return if obtained medical clearance - Reasonably open to applicant to interpret letter as dismissal - No notice or attempt to talk through possible retention of job - Wholly unjustified given shortness of time between return to work and dismissal - Given length of time position already held, could have given applicant more time and notice to avoid misunderstanding - However, reasonable for applicant to provide medical clearance and he had not adequately explained absence - Remedies - Applicant would have been entitled to four weeks notice to get medical certificate before losing job - However, not entitled to wages during that time since on unpaid sick leave - Applicant not necessarily able to work full time - Lost wages restricted to four weeks less earnings - PENALTY - Applicant sought penalties for not providing employment agreement, and wage, time and holiday records - Documents were eventually produced and no prejudice to applicant - BREACH OF CONTRACT - Counterclaim - Respondent sought damages for applicant's alleged failure to abide by commitments - Claim dismissed because of lack of detail - Service technician
Result: Application granted (dismissal) ; Reimbursement of lost wages ($2,563.08)(4 weeks less earnings) ; Compensation for humiliation etc ($1,000) ; Application dismissed (Penalty) ; Counterclaim dismissed
Scenario Communications Ltd v Bailey
12 Apr 2007, GJ Wood, WA 54/07, (9 pages)
BREACH OF CONTRACT - Applicant claimed respondent breached employment agreement by doing work on own behalf, misappropriating property, attempting to solicit co-workers to work with him, and not devoting full working time and attention to applicant - Damages - Respondent denied breaches, except for taking some property, which subsequently returned - Respondent clearly breached duty of fidelity by attempting to take work opportunity with a contact of applicant - Prepared own pitch independent of applicant - Constituted breach because used property for personal use without permission - However, no damage suffered as result - Respondent did other work and charged for it personally - Breached conflict of interest clause that prohibited respondent engaging in other employment without applicant's express consent - Respondent to pay damages equal to amount he charged personally - Respondent took electronic and physical property of applicant - No evidence applicant suffered loss - Claim respondent used applicant's time to set up own business dismissed - Respondent's approaches to two co-workers about working with him, or for him in own business clearly constituted endeavours to entice them away from applicant - Breach not serious given efforts unsuccessful and no damage suffered - PENALTY - All breaches exposed respondent to penalty claim - Respondent took cavalier and reckless approach to his employment obligations - Did not refer back to them even when applicant specifically brought to his attention - Respondent liable to substantial penalties - Damages for conflict of interest breach, and lack of direct damage resulting from other breaches taken into account in penalty award - Communications design director
Result: Applications granted ; Damages ($3,070) ; Penalty ($5,000)(Payable to Crown) ; Costs reserved
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)
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