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Barry v Anoop Investments Ltd and Ors
18 Jan 2007, M Urlich, AA 11/07, (5 pages)
PRACTICE AND PROCEDURE - No written employment agreement - Identity of employer - First respondent company and its directors named respondents - Applicant believed director personally employed him - Authority satisfied first respondent applicant's employer - ARREARS OF WAGES - Applicant claimed agreed to work no less than 40 hour weeks and sought arrears when rostered less than 40 - Not credible applicant would have waited to assert agreement - No agreement applicant to work minimum of 40 hours - Respondent presented new roster reducing applicant's hours - Authority not satisfied respondent conducted transparent consultation process - Applicant did not agree to permanent reduction - Implementation of roster breached terms of employment agreement - Respondent ordered to pay arrears for days applicant rostered off as result of reduction until resignation - Insufficient evidence parties agreed to loyalty bonus - Bonus claim dismissed - UNJUSTIFIED DISMISSAL - Constructive dismissal - Respondent told applicant could not afford to employ him and to look for other employment - Applicant raised arrears claim and personal grievance - Claimed employment relationship deteriorated and put under stress causing his resignation - Breach did not cause resignation as reduction issue ongoing over period of year - Other alleged breaches not sufficiently serious that risk of resignation reasonably foreseeable, and allegations not raised with respondent - No constructive dismissal - UNJUSTIFIED DISADVATANGE - Disadvantage claim out of time - PENALTY - Respondent failed to provide written employment agreement - Failure created uncertainty about terms of employment - However, intended to provide written employment agreements to staff but overlooked applicant - Oversight not wilful avoidance of s65 Employment Relations Act 2000 obligations - Penalty declined - Butchery manager
Result: Applications dismissed (Unjustified dismissal, unjustified disadvantage) ; Arrears of wages (Quantum to be determined) ; Costs reserved
Bond v Reach Investments Corporation Ltd
14 Mar 2007, L Robinson, AA 68/07, (3 pages)
ARREARS OF WAGES - Applicant claimed bonus monies from respondent - Respondent in liquidation - No appearance for respondent - At time statement of problem filed, Authority declined to accord matter urgency - Time for lodging statement in reply enlarged - Respondent's representative subsequently advised respondent in liquidation and would not file statement in reply - Under s248 Companies Act 1993, investigation prohibited in absence of liquidator's consent or order of Court - Investigation suspended - Applicant to advise of intentions - Liquidator to be served with copy of determination
Result: Orders accordingly ; Costs reserved
Hakansson v Esther Monteith t/a Centre Cafe
1 May 2007, GJ Wood, WA 68/07, (5 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Applicant irritated with co-worker and left work 10 minutes early saying "Going a little early - I'm out of here - See ya" - Respondent alleged intended to quit as took books - Later rang applicant who denied quitting - Respondent insisted employment over - Applicant subsequently went to work as usual - Barred from entering premises and believed dismissed - Respondent right to follow up as applicant's words and actions ambiguous - However, became clear had not intended to resign - Dismissed as respondent insisted had resigned and refused to allow re-entry to premises - Dismissal unjustified - Remedies - Limits applicant placed on doing temporary work taken into account when awarding lost wages - Given applicant had not taken breaks that day, leaving a bit early not blameworthy compared with respondent's response - Penalty not appropriate - ARREARS OF HOLIDAY PAY - Despite undertaking from respondent holiday pay not paid - Arrears due and owing - Cook
Result: Application granted ; Reimbursement of lost wages ($10,920) ; Compensation for humiliation etc ($8,000) ; Costs reserved
Hertel v GCB Construction Ltd and Ors
19 Apr 2007, GJ Wood, WA 57/07, (2 pages)
ARREARS OF WAGES - First respondent ("CGB") sold business to third party - At time of sale applicant owed wages - Sum remained unpaid due to dispute over liability between CGB and purchaser - Responsibility for payment lay with CGB - Following sale CGB had no assets and unable to pay applicant - Third respondent, as principal of CGB, undertook to personally take responsibility for payment - Had since resiled from undertaking because believed could not afford payment - Arrears due and owing by CGB - Applicant also entitled to interest - Issue of third respondent's personal liability reserved - Claim against second respondent dismissed - COSTS - Length of investigation meeting not specified - Applicant sought $2,000 costs - Much of sum must have related to claims against purchaser - First respondent never disputed liability - $400 contribution appropriate
Result: Application granted against first respondent ; Arrears of wages ($10,375.42) ; Interest (7.5%) ; Costs in favour of applicant ($400)
Lunt v Customised Solutions Group Ltd
24 Jan 2007, K Raureti, AA 16/07, (3 pages)
ARREARS OF WAGES - Applicant sought two months wages and reimbursement of various expenses incurred on behalf of respondent - No appearance by respondent - While applicant did not have receipts for expense claims he had spreadsheet prepared by respondent setting out amounts owed - Applicant's unchallenged evidence accepted - Arrears due and owing
Result: Application granted ; Arrears of wages ($7,000) ; Expenses ($901.35)
Mi v Awataha Corporate Ltd
29 Jun 2007, L Robinson, AA 197/07, (2 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Applicant claimed owed four weeks wages and holiday pay - Respondent admitted holiday pay owing but denied applicant worked during period claimed - Failed to produce wage and time records as required by Authority - Applicant's evidence accepted - Arrears of wages and holiday pay due and owing - Interest 10 percent
Result: Application granted ; Arrears of wages ($1,846.15) ; Arrears of holiday pay (Quantum to be determined) ; Interest (10%) ; Disbursements ($70)(Filing fee)
Mudge v Botany Plastics Ltd
16 Apr 2007, L Robinson, AA 109/07, (6 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Dismissed for theft - Applicant's evidence preferred - Invited to meeting without warning and told dismissed - Applicant asked why and told theft traced to her - When denied claim, respondent threatened to call police - Applicant made to write confession dictated by respondent - Applicant invoiced for amount outstanding and told to pay within three months or charges would be laid - Minimum requirements of procedural fairness not met - No convincing evidence of serious misconduct to justify summary dismissal - Applicant young - Real risk intimidated - Unsafe to rely on confession, investigation and conclusion of serious misconduct - Not actions of fair and reasonable employer - Dismissal unjustified - ARREARS OF WAGES - Respondent withheld severance pay to offset amount allegedly stolen - Arrears due and owing - Sales assistant
Result: Application granted ; Reimbursement of lost wages ($5,381.32) ; Compensation for humiliation etc ($8,000) ; Arrears of wages ($406.29)
Pharmacy Retailing (NZ) Ltd v Takarua
26 Apr 2007, RA Monaghan, AA 123/07, (4 pages)
RECOVERY OF MONIES - Overpayment of wages - No appearance by respondent - Administrative error meant respondent paid salary for two months after employment ended - Respondent had not disputed liability and indicated on number of occasion had arranged to pay money back by instalments - However, no payments received - Applicant did not attend when parties formally directed to mediation - Respondent had embarked on series of delaying tactics which could not continue - Ordered to repay money by instalments - If defaulted, applicant entitled to interest at 8 percent and could elect to treat entire amount as due and payable immediately
Result: Application granted ; Orders accordingly ; Disbursements in favour of applicant ($70)(Filing fee)
Rider v Stratford By Products Ltd, also t/a Taranaki Abattoirs (1992) Ltd
23 Jan 2007, GJ Wood, WA 8/07, (4 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Credibility finding against applicant - Authority found applicant decided to resign after suffered second injury at work - Announced intention to leave immediately during heated discussion with manager - Manager acted as fair and reasonable employer - Sought to find out and discuss reasons for leaving and tried to get applicant to defer making decision on the spot - Applicant later went to doctor and obtained medical certificates stating unfit for work - Remained on ACC for considerable period, despite respondent disputing his eligibility - ACC matter effectively closed as respondent chose not to challenge notification of acceptance of work injury - Applicant resigned - No personal grievance - ARREARS OF WAGES - Applicant not paid first week's ACC compensation after first injury - Respondent undertook to make payment to applicant - By-products operator
Result: Application dismissed (Unjustified dismissal) ; Application granted (Arrears of wages) ; Arrears of wages (1 week) ; Costs reserved
Sajjad v Ticketek New Zealand Ltd
2 Jul 2007, L Robinson, AA 198/07, (4 pages)
ARREARS OF WAGES - Applicant sought arrears owed to him for notice period - Applicant resigned and gave one month's notice as required - One week into notice period applicant sent email requesting "early release" from position and asked for response by midday - Response not received until after deadline - Dispute over whether applicant later told to leave early or given option to - Authority found applicant not required to leave - Although original offer had expired, applicant accepted new offer by respondent to release him early - Employment ended by mutual agreement - Not entitled to arrears for remainder of notice period
Result: Application dismissed ; Costs reserved
Williamson v RJI Pacific International Ltd
8 Dec 2006, R Monaghan, AA 374/06, (3 pages)
ARREARS OF WAGES - Respondent company petitioned by creditor to be placed in liquidation - Applicant amended claim and sought only payment in lieu of notice of termination of employment - Applicant not seeking to pursue remainder of claims - Applicant advised Authority of amendment and Authority advised respondent - Authority sought response from respondent whether applicant's claim for monies owing correct - Authority gave respondent extension and advised applicant's claim specific, limited, and could be heard on papers - Respondent replied could not substantively respond on matter until it had obtained constructive input from employee - Reply did not adequately identify difficulty in responding to Authority's questions - Matter to be determined in absence of respondent - Calculations showed applicant did not receive payment in lieu of notice - Obvious absence of payment readily identifiable when response sought - Redundancy provision contained no mention of notice of termination - Termination provision entitled applicant to one month's payment in lieu of notice of termination - No counter evidence provided by respondent - Respondent to pay applicant one months payment in lieu of notice
Result: Application granted ; Reimbursement of lost wages ($2916.66)(1 Month) ; Disbursements in favour of applicant ($70)(Filing fee)
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