| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 57 |
| Hearing date | 21 Dec 2011 |
| Determination date | 17 February 2012 |
| Member | R A Monaghan |
| Representation | M Moncur ; B Suess |
| Location | Auckland |
| Parties | Ma v Dolce Design Ltd and Anor |
| Other Parties | Could Twelve Ltd (formerly 4U Web Design Ltd) |
| Summary | PRACTICE AND PROCEDURE – Whether first or second respondent employer – First respondent (“DDL”) claimed second respondent (“4U”) employer – Applicant commenced employment with DDL – DDL’s managing director (“S”) claimed split DDL into four new entities of which one was 4U and DDL ceased trading – S discussed proposal with applicant – Parties agreed S offered applicant 4U shares – S claimed without applicant’s involvement would not have developed 4U idea further and told applicant several times 4U would be applicant’s “baby” – Applicant claimed did not want to run 4U but decided would not tell S until given proposal document – Parties discussed new employment agreement (“EA”) – New EA photocopy of original EA with amendments including name of employer initialled by DDL’s business consultant – Applicant denied saw new EA – Applicant left for China and returned to New Zealand two months later – Applicant sponsored parents’ emigration to New Zealand and applicant’s supporting evidence included copy of original EA and letter from S stating employment had been with DDL until 4U set up - Applicant claimed work continued as usual after 4U set up – Authority found applicant did not sign new EA whether or not given copy – Found applicant chose not to take proper account of information when S explained proposal – Found applicant could not rely on inaction to say did not agree to S’s proposal – Found applicant continued employment after 4U set up without indicating disagreement or refusal to accept proposal – Found applicant aware wages later paid by 4U and did not disagree with supporting letter S provided stating 4U now employer – Found although no express written or oral agreement that 4U became applicant’s employer applicant gave implied consent – Found 4U applicant’s employer - UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed respondents failed to pay wages in full or on time and resigned – Parties agreed 4U would bring wage payments up to date – S claimed could not meet agreement as applicant generated income for 4U – Found 4U’s continuing failure to pay applicant full wages when due amounted to breach of duty sufficiently serious that reasonably foreseeable applicant would resign – Found applicant’s resignation caused by 4U’s breach of duty – Dismissal unjustified – REMEDIES – Found no evidence of injury to applicant’s feelings - $1,920 reimbursement of lost wages - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Parties agreed $5,981 remained outstanding – Found $5,981 arrears of wages and holiday pay due and owing - PENALTY – Applicant sought penalty for respondent’s breaches of good faith duty – Found although respondent’s failure to pay wages when due breached EA not necessarily breach of good faith duty – No penalty – Applicant sought penalty for respondent’s failure to provide written employment agreement – Authority not persuaded should be order for penalty – No penalty - Web Development Designer |
| Result | Applications granted (unjustified dismissal and arrears of wages and holiday pay) ; Reimbursement of lost wages ($1,920) ; Arrears of wages and holiday pay ($5,981.04) ; Interest (5%) ; Applications dismissed (practice and procedure and penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA 4;ERA 4(1);ERA 4A;ERA s63A;ERA s63A(3);ERA s65;ERA s65(4);ERA s135(5) |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union Of Workers (Inc) [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Auckland_57.pdf [pdf 43 KB] |