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BVR Operations Ltd t/a Brinkley Village v Baker (Labour Inspector)
20 Oct 2006, H Doyle, CA 149/06, (9 pages)
ARREARS OF HOLIDAY PAY - Objection to demand notice issued by respondent Labour Inspector - Demand notice required payment of annual and public holiday pay to former employee ("S") - Applicant disputed notice on grounds S's employment intermittent and irregular, annual holiday pay included in hourly rate, and S knew and agreed to payment in that manner - Also objected on ground respondent incorrectly determined six public holidays otherwise working days - No written employment agreement - Payment in such manner only permitted in two circumstances in s28 Holidays Act 2003 - Not fixed term employment - Authority considered pattern of work to determine whether intermittent or irregular - Hours varied - Schedule indicated features of regularity and predictability of work patterns - Three weeks annual leave practicable - Although finding resolved issue, Authority considered s28 requirements - Authority not satisfied on balance of probabilities S agreed holiday pay included in hourly rate - No evidence in wage and time records and no payslips showing holiday pay as identifiable component - No deduction under s23(2) given applicant not entitled to pay holiday pay in advance - Annual holiday pay due and owing - Reasonable expectation S would have worked when restaurant open - Each public holiday fell on or transferred to otherwise working day - Fact restaurant closed for Christmas and Easter periods not relevant - Given variance in hours, and no other rate specified in any employment agreement, formula in s9(3) appropriate method of calculation of relevant daily pay - Authority agreed with respondents calculations - Public holiday pay due and owing - COMPLIANCE ORDER - Objection not upheld - Compliance with demand notice ordered
Result: Application dismissed (Objection to demand notice) ; Arrears of holiday pay ($297.45)(Annual holiday pay), ($319.62)(Public holiday pay) ; Orders accordingly ; Costs reserved
Carter v Turnaround Managers Ltd
14 Dec 2006, YS Oldfield, AA 378/06, (7 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Triangular employment - Applicant claimed owed wages for accounting work done for respondent's clients - Respondent argued accounting work performed by applicant on own account and not as employee - Applicant unaware accounting work expressly excluded from respondent's contract with first client - In absence of instruction to change or cease what doing, work done on respondent's behalf and in capacity as employee - Employment agreement made wage payments conditional on respondent having contracted to provide services to clients and on client having made payment - Respondent submitted bore no liability as conditions not met - Applicant accepted payment conditional but considered respondent had responsibility to invoice clients and pursue payment vigorously - Essentially "commission only" arrangement - Authority did not accept respondent did not have contracts with clients - However, accepted payment not received and could not accept respondent failed to adequately pursue payment - Applicant knew high risk environment meant risk of non-payment - Condition not met - However, Minimum Wage Act 1983 and Wages Protection Act 1983 applied - Applicant not paid for nine weeks - Entitled to arrears of wages based on minimum wage - Respondent accepted holiday pay due and owing
Result: Application granted : Arrears of wages ($810) ; Arrears of holiday pay ($4,271.06) ; Interest (8%) ; Costs to lie where they fall
Horn (Labour Inspector) v B W Murdoch Ltd
18 Jun 2007, J Scott, AA 180/07, (11 pages)
ARREARS OF HOLIDAY PAY - Applicant Labour Inspector sought public holiday pay on behalf of H - Respondent claimed not entitled to payment because casual employee not offered work on public holidays - Employment agreement stated employment casual - Usually worked regular days and hours - Four public holidays occurred over period of employment - Applicant's evidence preferred, except evidence entitled to accept or reject work as saw fit - Employment consistent with that contemplated under s66 Employment Relations Act 2000 ("ERA") - Although agreement did not conform to s66(4) ERA and respondent could not have relied on it as valid s66 agreement if dispute had arisen, it provided best description of employment - Not casual employment - Respondent entitled to dictate no work on public holidays but did not follow was relieved of paying applicant if public holiday fell on otherwise working day - Only Mondays applicant did not work were public holidays when directed not to - Respondent claimed rate of pay consistent with casual work and applicant accepted would not be paid for public holidays - Factors not relevant to determination of problem - Fact applicant continued working could not be taken as agreement in matter, and in any event, agreement excluding, restricting or reducing statutory entitlements had no effect - No question public holidays in question were otherwise working days - Respondent breached HA - Arrears of holiday pay due and owing - Interest 9 percent
Result: Application granted ; Arrears of holiday pay ($826.20) ; Interest (9%) ; Costs reserved
Jose v Barter Exchange Ltd t/a Victoria Motor Services
15 Dec 2006, P Stapp, WA 176/06, (17 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages, holiday pay and other monies owed under alleged employment agreement - Credibility finding in favour of respondent - Authority satisfied terms and conditions of employment not represented by letter - Claims for accommodation and airfares not made out - Deductions by respondent breached Wages Protection Act 1983 - However, respondent reasonably believed had authority given applicant's complicity - Final pay and holiday pay owing - DAMAGES - Applicant's claim for damages misconceived and without sufficient details and support - COUNTERCLAIM - BREACH OF CONTRACT - Applicant resigned without notice - Reasonable notice would have been two weeks - No award for damages as no direct evidence of loss - PENALTY - Deliberate failure to give reasonable notice - Penalty not raised in statement in reply - Given lack of proper notice and quasi criminal nature of penalties Authority declined to impose penalty on applicant - RECOVERY OF MONIES - Respondent sought to recover money for parts and tools applicant bought on account during employment - Applicant denied sums owed - Both parties denied having items - Amounts directly related to employment - Applicant ordered to pay entire sum claimed and to reimburse respondent cost of towing away his car - Sums to be offset - Mechanic
Result: Application granted (Arrears) ; Arrears of wages and holiday pay ($1,296.05) ; Application dismissed (Damages) ; Counterclaim granted (Recovery of monies) ; Monies owed ($821.17) ; Counterclaim dismissed (Breach of contract, penalty) ; Costs reserved
Ploszaj v Rush Security Services Ltd
26 Jul 2007, Y Oldfield, AA 220/07, (7 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Employment relationship lasted 6 days - Respondent relied on provision in individual employment agreement ("IEA") to withhold all wages and holiday pay - Authority found applicant's command of English not sufficient to understand obligations in IEA - Applicant claimed was told would be working mixture of day and night shifts - Resigned after being rostered mostly night shifts - Respondent accepted resignation, and did not remind applicant of contractual obligations - Respondent not provided copy of IEA - Authority found applicant genuinely misunderstood type of shifts offered by respondent - Respondent asked Authority to determine whether IEA provisions enforceable - IEA provided for applicant to give one weeks notice and failure to do so would incur forfeiture of weeks pay in lieu of notice - Provisions enforceable - However, Respondent's failure to provide IEA meant applicant unable to check notice provisions - Without copy of IEA applicant not responsible for mistake - Respondent erred in witholding applicants final pay - Respondent ordered to pay wages
Result: Application granted; Arrears of wages ($523.13) ; Arrears of holiday pay ($31.39)(Arrears less security licence ($20))
Samson v K & T Renata Transport Ltd
13 Dec 2006, M Urlich, AA 377/06, (5 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Respondent claimed applicant dismissed because persistently failed to perform duties - Respondent proposed change from salary to hourly rate - Applicant rejected proposal and claimed meeting became hostile when raised issue of deductions from pay - Filed assault charges with police over actions of director's father but matter not prosecuted - Director denied being hostile towards applicant and alleged he threw cell phone - Authority satisfied some form of altercation occurred - Respondent submitted not responsible for actions of director's father as not employee - Argument did not stand as father worked part time for company and to objective observer represented respondent at meeting - For director to allow father to assault applicant amounted to serious failure by respondent to maintain obligations to provide safe workplace - Applicant's doctor placed him on stress leave - Respondent denied receiving medical certificate but Authority found applicant made reasonable efforts to send it - After representative raised personal grievance and deductions issue, applicant received dismissal letter - Reasonable for applicant to form view respondent would not abide by terms of employment agreement - Constructive dismissal - In event Authority wrong, actual dismissal unjustified as no reasonable basis for it - Remedies - Although tossing cell phone unwise, not blameworthy conduct which contributed to dismissal, reaction not proportionate - PENALTY - Applicant alleged unauthorised deductions from wages - Although agreed to deductions no evidence of written consent - Respondent failed to comply with Wages Protection Act 1983 - Penalty appropriate - ARREARS OF HOLIDAY PAY - Calculation of holiday pay referred to Labour Inspectorate - Authority had not yet received Inspector's report - Claim stayed pending further information - Length of service seven months - Driver
Result: Application granted ; Reimbursement of lost wages ($3,588)(23 days) ; Compensation for humiliation etc ($4,000) ; Penalty ($200)(Payable to Crown) ; Costs reserved
Tatom v Duffield
16 May 2007, H Doyle, CA 55/07, (11 pages)
JURISDICTION - Whether employee or independent contractor - No written employment agreement - Parties did not put minds to nature of relationship - Authority unable to conclude common intention - Factors indicative of employment relationship outweighed factors indicative of independent contractor - Real nature of relationship employment - Employee - UNJUSTIFIED DISMISSAL - Applicant made statements to government department relating to respondent's partner, an employee of that department - Partner subsequently dismissed - Probable respondent knew of statements and likely would have been angry and raised them - Authority found respondent said words to effect of "X is fired so you're fired" - Fair and reasonable employer would have met or at least written to applicant and explained difficulties of continuing working together - Should have negotiated notice period - Instead, summarily dismissed and applicant's partner threatened - Unjustified dismissal - Remedies - Fact employment short, and applicant unlikely could have continued working, relevant to award of lost wages and compensation - ARREARS OF HOLIDAY PAY - No details of earnings provided - Leave reserved for applicant to return to Authority if wished holiday pay to be calculated - Counterclaim - Respondent counterclaimed against applicant for slander and defamation of character, and sought lost earnings and compensation - Argued statements about to government department false - Respondent seeking damages flowing from dismissal of his partner by her employer - Authority did not have jurisdiction - Counterclaim dismissed - COSTS - One ½ hour investigation meeting - Costs of $1,000 appropriate - Length of service two months - Hammer hand
Result: Application granted (Jurisdiction, unjustified dismissal) ; Reimbursement of lost wages ($2,720) ; Compensation for humiliation etc ($5,000) ; Counterclaim dismissed ; Costs in favour of applicant ($1,000)
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