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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
Douglas v Harmes Sharley International Ltd
1 Feb 2007, L Robinson, AA 24/07, (6 pages)
COMPLIANCE ORDER - Applicant sought compliance with record of settlement - Authority satisfied respondent failed to comply - Applicant's calculation of sum outstanding accepted - Compliance ordered - Interest awarded on outstanding sum - PENALTY - Respondent deliberately withheld payment - Not entitled to impose conditions on performance of record of settlement - No justification for failure to provide reference - Respondent's correspondence aimed at frustrating performance - Wilfully breached settlement - Penalty warranted - BREACH OF CONTRACT - Applicant also sought damages for non-economic loss - Not appropriate to deal with claim on papers alone - Counsel to confirm appropriate arrangements with Authority
Result: Compliance ordered ; Interest (9%) ; Application granted (Penalty) ; Penalty ($3,000)($1,000 payable to Crown)($2,000 payable to applicant) ; Application reserved (Breach of Contract) ; Orders accordingly ; Costs reserved
Hamilton v B&D Doors Ltd, previously known as Dominator International Ltd and Ors
24 Jan 2007, J Crichton, CA 5/07, (9 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged performance targets set without consultation - No evidence of this and nothing wrong with targets being formulated - Also alleged demoted from managerial position - Respondent concerned about production - Decided another employee would take over management role temporarily - Respondent's claim applicant accepted plan not accepted - No written agreement - No legal basis for demotion - Unilateral change to terms and conditions - Irrelevant continued to receive full salary - No performance review or opportunity to improve - Applicant suspended after respondent received reports he changed machine settings - No general legal right to suspend - Demotion and suspension unjustified actions - UNJUSTIFIED DISMISSAL - Misconduct - Applicant denied changing machines - Respondent concluded applicant responsible and actions serious misconduct - Applicant summarily dismissed - Respondent's investigation and evidence not robust enough to ground dismissal - Authority not persuaded settings changed with sinister intent - Dismissal unjustified - PENALTY - Applicant sought penalty for failure to provide written employment agreement and demotion - Matters dealt with under personal grievance, no need for penalty - No lockout as alleged by applicant as respondent lacked required motive - No evidence second and third respondents incited, instigated, aided or abetted breach of applicant's employment agreement - Manager
Result: Application granted (Disadvantage, Dismissal) ; Reimbursement of lost wages ($11,250)(3 months) ; Compensation for humiliation etc ($1,000)(Demotion disadvantage) ; ($1,000)(Suspension disadvantage) ; ($5,000)(Dismissal) ; Application dismissed (Penalty) ; Costs reserved
Harvey v Milton Grange Pharmacy Ltd
20 Feb 2007, J Crichton, CA 18/07, (7 pages)
UNJUSTIFIED DISADVANTAGE - Whether respondent's owner told applicant business sold during job interview - Applicant claimed had no idea business sold and employment relationship would soon end - Applicant claimed found out situation when overheard owner talking about upcoming retirement - Owner told applicant buyer would take her on - Based this on fact buyer willing to employ applicant's predecessor - However, predecessor had pharmacy qualification and of different utility - Applicant subsequently spoke to buyer, who indicated did not wish to employ her - On balance of probabilities owner did not take sufficient steps to ensure applicant understood business sold - Failed to clearly establish terms of engagement - Owner should have ascertained whether applicant's employment would continue with buyer - Unjustified disadvantage - As soon as became clear applicant's employment not going to continue severance negotiations should have begun - No evidence of breach of good faith, owner genuinely believed applicant engaged for continuing employment - PENALTY - Failure to provide written employment agreement significant - Would have forced parties to recognise nature and extent of employment relationship - Penalty appropriate - Pharmacy assistant
Result: Application granted ; Compensation for humiliation etc ($7,000) ; Penalty ($750)(payable to applicant) ; Costs reserved
Miles v Masterworld Ltd
19 Dec 2006, R Monaghan, AA 380/06, (6 pages)
UNJUSTIFIED DISMISSAL - Dismissed for abusive and intimidating conduct during altercation with delivery driver outside company premises - Respondent's director saw incident and spoke with driver - Director then rang applicant and told him 'gone too far' and would be dismissed - Despite being told not to return, applicant promptly went back to premises - Took issue with accusations and expressed adverse view of way company run - Applicant claimed dismissed for criticising management - Director sought to make number of allegations about applicant's conduct during employment, although stated would not have dismissed but for incident - Evidence of bullying behaviour by applicant - Applicant dismissed on phone, not after criticising management - Basic requirements of procedural fairness not met - Decision flawed if driveway incident immediate reason for it - If relying on historical concerns, failure to address them made decision even more flawed - Dismissal unjustified - Remedies - Applicant contributed very significantly to grievance - Driving inherently dangerous and confronting delivery driver unacceptable - If addressed properly, dismissal would probably have been justified - Contributory conduct 100 percent - PENALTY - Respondent claimed provided full employment agreement but no record of this - Signed job description did not comply with s65 Employment Relations Act 2000 - However, no penalty provision in s65 - Length of service not specified - Steel fabricator
Result: Application dismissed (Penalty) ; Application granted (Unjustified dismissal) ; Costs reserved
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