| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 195 |
| Hearing date | 30 Mar 2012 |
| Determination date | 10 September 2012 |
| Member | H Doyle |
| Representation | G Clarke ; L Penno |
| Location | Timaru |
| Parties | Anderson v Clough Agriculture Ltd |
| Summary | ARREARS OF WAGES - Applicant claimed respondent failed to pay applicant correct sales bonus for two financial periods – Authority found applicant had express contractual entitlement to bonus – Found applicant had not waived right to claim balance of sales bonus for first financial period – Found applicant should have been paid on 95 per cent basis for first financial period - Respondent to pay applicant $8,500 arrears of wages for first financial period - Interest payable – Found applicant entitled to pro rata payment of sales bonus for second financial period although resigned before financial year ended - Respondent to pay applicant $3,650 arrears of wages for second financial period - Interest payable – PENALTY – Applicant sought penalty for respondent’s breach of parties’ employment agreement – Found parties’ dispute involved legal issues that required resolution rather than wilful breach by respondent - No penalty - Area Manager |
| Abstract | Applicant employed as area manager. Applicant claimed respondent failed to pay applicant correct sales bonus for two financial periods. Applicant sought interest on amounts outstanding and penalty for respondent’s breach of parties’ employment agreement (“EA”). Applicant claimed required to split bonus for first financial period with another employee (“J”) but applicant had made most of sales. Applicant disputed amount of bonus paid and told respondent director (“M”) had not been paid correct percentage of bonus. J claimed had agreed with M that applicant should receive 75 per cent of sales bonus and J would pay applicant balance. Applicant denied agreed with J on how sales bonus should be split. Applicant raised with respondent concern about how sales bonus split for second financial period. Respondent paid applicant on basis applicant responsible for 95 per cent of sales but claimed accepted applicant’s evidence as J had left respondent. Respondent denied contractually bound to pay applicant bonus for either period and claimed applicant had previously waived right to pursue claim for bonus for earlier period. Respondent commenced restructure and applicant’s duties extended. Respondent director (“M”) claimed after role change applicant entitled to sales based bonus scheme. Applicant advised respondent had made changes to calculation of sales bonus. Respondent claimed sales bonus never term of EA rather discretionary scheme based on applicant’s performance and sales turnover. Respondent claimed applicant not entitled to bonus for second financial period as applicant resigned before end of financial year.;AUTHORITY FOUND –;ARREARS OF WAGES: Applicant had express contractual entitlement to bonus. Discretionary part of bonus unchanged after respondent restructure but part of bonus measured on sales rather than company turnover. Payment of bonus remained express term of EA. Respondent entitled to review bonus scheme but only part of bonus discretionary while other part based on measurable sales turnover. Respondent left applicant and J to agree on how sales bonus for first financial period split. J’s payment to applicant was not in full and final settlement of bonus owing to applicant for first financial period. Applicant had not waived right to claim balance of sales bonus for first financial period. Applicant should have been paid on 95 per cent basis for first financial period. Respondent to pay applicant $8,500 arrears of wages for first financial period. Interest payable. Applicant entitled to pro rata payment of sales bonus for second financial period although resigned before financial year ended. Respondent to pay applicant $3,650 arrears of wages for second financial period. Interest payable.;PENALTY: Parties’ dispute involved legal issues that required resolution rather than wilful breach by respondent. No penalty. |
| Result | Application granted (arrears of wages) ; Arrears of wages ($12,150.75) ; Interest (5%) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Arrears |
| Statutes | Employment Contracts Act 1991 s28;ERA Second Schedule cl11;Judicature Act 1908 s87(3) |
| Cases Cited | Bradshaw v James Pascoe Ltd unreported, V Campbell, 3 August 2007, AA226/07;Tranz Rail Ltd v Rail & Maritime Transport Union (Inc) [1999] 1 ERNZ 460 |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Christchurch_195.pdf [pdf 255 KB] |