| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 156 |
| Determination date | 09 May 2012 |
| Member | R A Monaghan |
| Representation | E Hartdegen ; R Upton |
| Location | Auckland |
| Parties | Danks v Hailes & Associates Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Dismissal - Applicant claimed unjustifiably dismissed by respondent - Authority found no reasonable grounds for applicant to believe employment terminated - No dismissal - ARREARS OF WAGES AND HOLIDAY PAY - Applicant claimed arrears of wages and holiday pay - Found applicant and respondent agreed applicant to receive pay increase - Found applicant agreed would not work days applicant claimed not paid - Respondent to pay applicant $4,445 arrears of wages - Respondent to pay applicant arrears of holiday pay, quantum to be determined - RECOVERY OF MONIES - Applicant claimed respondent agreed to reimburse applicant for course fees - Found respondent agreed to reimburse applicant for courses passed - Respondent to reimburse applicant course fees, quantum to be determined - PENALTY - Applicant sought penalty for respondent's failure to pay holiday pay and breaches of good faith - Found penalty not appropriate in circumstances - No penalty - COUNTERCLAIM - BREACH OF CONTRACT - PENALTY - Respondent sought damages and penalty for applicant's failure to serve notice period - Found damages claim not pursued and applicant's departure without notice not wilful breach of employment agreement - No penalty - Accountant |
| Abstract | Applicant employed by respondent as accountant. Applicant claimed unjustifiably dismissed by respondent. Applicant sought arrears of wages and holiday pay. Parties disputed applicant promised two pay increases. Applicant did not work over school holiday and paid for only two weeks. Applicant sought penalty for respondent's failure to pay holiday pay for full period. Applicant claimed not paid for three days at end of school holiday. Parties agreed applicant able to seek other work during three month period when respondent had limited work. One month later applicant decided no work available at respondent and left office. Respondent claimed work available. Applicant claimed not paid for half of applicant's final day at work. Respondent failed to follow up applicant's failure to report to work over following two months. Applicant believed respondent had replaced applicant and respondent believed applicant not returning. Applicant requested respondent pay outstanding holiday pay. Respondent advised applicant considered request for holiday pay confirmation applicant's employment terminated. Respondent made clear applicant not dismissed and able to return to work. Applicant did not respond. Applicant sought penalty for respondent's failure to pay outstanding holiday pay. Applicant sought penalty for alleged breaches of good faith. Applicant claimed respondent agreed to reimburse applicant for course fees. Respondent claimed only agreed to reimburse applicant for courses passed. Respondent counterclaimed for loss caused by applicant failing to serve notice period and sought penalty for applicant's failure to serve notice period.;AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Applicant not entitled to leave work on final day without making attempt to confirm no work available or discuss intentions. No reasonable grounds for applicant to believe employment terminated by respondent. No dismissal.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant and respondent agreed applicant to receive pay increases after nine and eighteen months service with service to be measured as calendar months. Parties agreed applicant would begin work after school holiday three days late due to illness. Applicant not entitled to wages for half of applicant's final day of employment. Respondent to pay applicant $4,445 arrears of wages. Respondent to pay applicant arrears of holiday pay, parties to determine quantum.;RECOVERY OF MONIES: Parties agreed applicant only to be reimbursed fees for courses passed by applicant. Respondent to reimburse applicant some course fees if applicant supplied proof course passed.;PENALTY: Even if respondent's failure to pay applicant's holiday pay in full in respect of school holiday period breach of employment agreement (EA"), circumstances of failure did not warrant penalty. Applicant not dismissed and outstanding holiday pay paid by respondent so no order for penalty. Alleged breaches of good faith by respondent not specified. No penalty.;COUNTERCLAIM - BREACH OF CONTRACT - PENALTY: Claim for breach of contract not pursued by respondent. Applicant's departure without notice not wilful breach of EA and affected by inadequate communication from respondent. No penalty." |
| Result | Applications granted (arrears of wages and holiday pay)(recovery of monies); Respondent to pay applicant $4,445 arrears of wages; Respondent to pay applicant arrears of holiday pay (quantum to be determined); Recovery of monies (quantum to be determined); Applications dismissed (unjustified dismissal)(penalty)(counterclaim) (breach of contract - penalty); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s63A;ERA s65(4);ERA s135(5);Holidays Act 2003;Holidays Act 2003 s27;Holidays Act 2003 s76(1) |
| Number of Pages | 19 |
| PDF File Link: | 2012_NZERA_Auckland_156.pdf [pdf 167 KB] |