Arrears - Holiday Pay - Employment Relations Act 2000
Drummond v National Union of Public Employees Inc
10 Aug 2007, P Cheyne, CA 100/07, (24 pages)
UNJUSTIFIED DISADVANTAGE - Respondent unilaterally varied employment agreement by reducing applicant’s hours - Applicant entitled to reject purported variation and insist on proper performance of agreement - Entitled to full salary from date of reduction - Authority determined applicant had raised grievance about issue - Unjustified disadvantage - Remedies - Applicant contributed to circumstances giving rise to disadvantage as misled respondent about salary when it took over his previous employer - Contributory conduct 60 percent - UNJUSTIFIED DISMISSAL - Misconduct - Breach of duty of fidelity - Parties relationship deteriorated, number of disciplinary investigations begun but reasonable in circumstances - Applicant dismissed for involvement in establishment of rival union - Conclusion open to reasonable employer - Dismissal justified - Claim for redundancy compensation and arrears of holiday pay dismissed - BREACH OF CONTRACT - Counterclaim - As counterclaim conditional on finding applicant entitled to redundancy compensation, not taken further by Authority - Union organiser
Result: Application granted (Disadvantage) ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($5,000 reduced to $2,000) ; Application dismissed (Dismissal, Arrears of holiday pay, Redundancy) ; Counterclaim dismissed ; Costs reserved
Park v K & C Howick Ltd t/a Howick Kim's Club & Anor
14 Aug 2007, D King, AA 247/07, (14 pages)
UNJUSTIFIED DISMISSAL – Redundancy - Proceedings complicated by applicant’s large investment or loan to first respondent – Matter outside Authority’s jurisdiction but coloured employment relationship - Identity of employer – Part of first respondent sold to second respondent and director agreed to second staff to second respondent – Applicant remained employee of first respondent but should have been informed of sale and consulted about “secondment” – Directors suggested applicant look for new employment but would continue to pay PAYE to help him meet residency requirements - No instruction not to come to work – Duties removed from applicant and pay stopped – Applicant alleged after unsuccessful mediation approached by “gangsters” who demanded problems be resolved without recourse to Courts – Authority accepted he felt intimidated but no evidence they were in fact gangsters, or hired by director to intimidate applicant – Applicant later dismissed when position disestablished – Clear much of work related to applicant’s role ceased to exist well before notification of possible redundancy – Failure to notify and discuss situation breached good faith, as did failure to discuss “secondment” – Later attempts at consultation a sham - Dismissal unjustified – UNJUSTIFIED DISADVANTAGE – Reason for failure to pay wages never made clear – Difficult to escape conclusion failure related to poor relationship between parties – Applicant unjustifiably disadvantaged – Failure by respondent to appropriately deal with situation that arose in workplace also constituted disadvantage - Remedies – No lost wages as work disappeared – Global award of compensation – Contributory conduct 25 percent - ARREARS OF WAGES AND HOLIDAY PAY – Arrears of holiday pay due and owing – Respondent deducted amounts equal to applicant’s PAYE from loan repayments – Deductions not agreed but as matter unrelated to employment Authority could not order reimbursement - PRACTICE AND PROCEDURE - First respondent placed in liquidation after investigation meeting – Registrar of Companies accepted applicant’s objection to removal of company from Register on basis it was party to legal proceedings - Marketing Manager
Result: Application granted ; Compensation for humiliation etc ($4,000 reduced to $3,000) ; Arrears of holiday pay ($2,726.73) ; Costs reserved
Pirimona & Anor v Wilson & Anor
8 Aug 2007, P R Stapp, WA 109/07, (17 pages)
JURISDICTION - Whether employee or independent contractor - Respondent exercised sufficient control over first applicant and his considerable hours meant integrated into business - First applicant an employee of second respondent - Second applicant claimed employed by first respondents personally - Worked infrequently on casual basis and directed on whether or not could work - Limited records led to conclusion second applicant employee of first respondents - UNJUSTIFIED DISMISSAL - Open to first respondents to cease offering work to second applicant as casual employee - No grievance - Altercation developed between second applicant and respondents and first applicant chose to leave with her - First applicant’s submission he left because upset asked to spy on contractor for respondent not credible given time delay - Applicants’ behaviour, evident at investigation meeting, added significantly to situation - Would have disentitled them to any remedies if had been unjustifiably dismissed - ARREARS OF WAGES HOLIDAY PAY - Arrears of holiday pay due and owing to both applicants - First applicant also owed wages and payment for sick days, but not entitled to payment for unused sick leave - Arrears to be offset by sum already paid by respondent - Caretakers
Result: Application granted (Arrears) ; Arrears of holiday pay ($8967.25)(Payable by second respondent to first applicant); ($381) (Payable by first respondents to second applicant) ; Arrears of wages ($1,417.50 less $1,000)(First applicant) ; Application dismissed (Dismissal) ; Disbursements in favour of applicants ($70)(Filing fee)
Smillie v Forrester Furniture 2006 Ltd
5 Sep 2007, J Scott, AA 274/07, (9 pages)
UNJUSTIFED DISADVANTAGE - No appearance by respondent - Applicant resigned and prepared record of all wages owing - However respondent did not settle up arrears and subsequent payment incomplete - Respondent also presented applicant with bill for purchases made from store at prices higher than allegedly agreed to - When applicant raised personal grievance, respondent contacted police alleging number of items stolen and search warrant executed at applicant’s home - Applicant submitted all items either obtained legitimately or never in her possession - Applicant’s evidence accepted - However, although complaint to police and subsequent search caused applicant much distress not an unjustifiable action that affected employment as occurred after she resigned - Other matters raised by applicant more appropriately dealt with as arrears claim - No unjustified disadvantage - ARREARS OF WAGES AND HOLIDAY PAY - Applicant’s evidence of arrears owing accepted - Arrears due and owing - Although applicant accepted owed some money to respondent for staff purchases no written authority for deductions to be made from wages - Authority accepted applicant would settle account - Shop assistant
Result: Applicant granted (Arrears) ; Arrears of wages and holiday pay ($623.61) ; Expenses ($79.97) ; Application dismissed (Disadvantage) ; Costs in favour of applicant ($1,000)
