| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 215 |
| Hearing date | 17 May 2012 - 18 May 2012 (2 days) |
| Determination date | 09 October 2012 |
| Member | R A Monaghan |
| Representation | J Beck ; W Van Harselaar |
| Location | Dunedin |
| Parties | Mathieson v The Beecroft Garden Trust & Ors |
| Other Parties | Bax, Furjan |
| Summary | ARREARS OF WAGES - Applicant sought $79,000 arrears of wages - Authority found no evidence applicant not paid for first 90 days’ remedial work - Applicant completed later work on property aware needed respondent’s prior authorisation and respondent wanted to limit how much was spent on remedial work - No arrears of wages - RAISING PERSONAL GRIEVANCE – UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed – Found applicant’s letter to respondent only evidence applicant attempted to raise grievance unjustifiably disadvantaged by respondent’s conduct – Found letter provided insufficient information to amount to raising of personal grievance – Found applicant’s claim unjustifiably disadvantaged by respondent’s second letter not raised within 90 days and no application to raise grievance out of time - No unjustifiable disadvantage – Found if employment relationship had continued until date respondent trustee obtained trespass order applicant could have been constructively dismissed - However no personal grievance raised accordingly – Found respondent’s second notice to applicant to vacate property confirmed employment relationship terminated and did not amount to dismissal - No personal grievance raised – PENALTY – Applicant sought penalty for respondent’s breach of good faith obligations - Found applicant’s allegations respondent breached good faith obligations unfounded - No penalty - Caretaker |
| Abstract | Applicant employed as caretaker. Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed. Applicant sought $79,000 arrears of wages and sought penalty for respondent’s breach of good faith obligations. Respondent sought penalties against second respondent (“H”) and third respondent (“K”) for aiding and abetting breaches of employment agreement (“EA”) as trustees of respondent. Respondent intended property would be used for inspiration towards global self-sufficiency including growing plants in accordance with organic principles. Respondent trustee (“B”) told applicant could live on property rent-free provided promoted respondent’s organic principles. Applicant told remuneration based on sale of respondent’s produces and payments by respondent. Applicant claimed voluntary arrangement that applicant would provide caretaking duties in return for living on property rent-free and receiving returns from sale of respondent’s produce. Applicant claimed separate employment agreement stated applicant would be paid $25 hourly wage for remedial work on respondent’s property. Respondent claimed caretaker position voluntary and no remuneration although applicant could sell respondent produce and keep proceeds. Parties agreed applicant was to keep property tidy and expected to teach organic gardening principles. Respondent’s letter to applicant did not mention remedial work or hourly rate. Respondent claimed only agreed respondent would be paid for specified jobs. Parties signed agreement applicant would be paid $25 hourly rate and had authority to restore respondent property but did not have full discretion as to what work would be done (“first document”). Respondent later sent applicant letter stating could not afford to pay applicant and hourly rate limited to 20 hours each week (“second document”). Parties arranged meeting but had disagreement about whether K and H could enter property where applicant resided. Respondent gave applicant notice to vacate property, Police called and applicant served trespass notice on K and H (“incident”). Applicant advised after incident respondent had decided to sell property and applicant’s employment would cease on date property vacated. Respondent applied to Tenancy Tribunal (“TT”) to have applicant removed from property. K obtained trespass order against applicant and applicant claimed had no intention to leave property. Respondent sent applicant further notice to vacate property. Applicant sent respondent letter claiming had personal grievance relating to respondent’s “disrespect and maltreatment.” TT found parties had entered into service tenancy.;AUTHORITY FOUND –;ARREARS OF WAGES - Parties did not have oral agreement that applicant would carry out additional remedial work for $25 hourly rate without limit on number of hours applicant would work. Purpose of second document was to further explain first document rather than vary terms of parties’ agreement. Applicant could have avoided protracted dispute if had discussion about what applicant would be paid earlier. Applicant’s conduct showed did not agree would be limit on hours applicant worked each week. Terms of parties' agreement therefore set out in first document. Parties did not agree weekly payment to applicant would be capped or that applicant would carry out necessary work on fulltime basis. Parties’ employment relationship ended when respondent gave applicant notice to vacate respondent property. No evidence applicant not paid for first 90 days’ remedial work. Applicant completed later work on property aware needed respondent’s prior authorisation, respondent wanted to limit how much was spent on remedial work and respondent later sought to have applicant removed from property. No arrears of wages.;RAISING PERSONAL GRIEVANCE – UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Applicant’s letter to respondent only evidence applicant attempted to raise grievance unjustifiably disadvantaged by respondent’s conduct during incident. Letter provided insufficient information to amount to raising of personal grievance. Even if applicant unjustifiably disadvantaged, given applicant’s contribution to circumstances remedy inappropriate. Applicant’s claim unjustifiably disadvantaged by respondent’s second letter not raised within 90 days and no application to raise grievance out of time. No unjustifiable disadvantage. Circumstances around applicant being given notice to vacate property arguably amounted to dismissal but applicant did not raise personal grievance of that kind and Authority would not reframe applicant’s grievance. Respondent’s letter respondent would be sold amounted to notice applicant’s employment terminated and combined with incident clear no longer was trust and confidence between parties. If employment relationship had continued until date F obtained trespass order applicant could have been constructively dismissed. However no personal grievance raised accordingly. Respondent’s second notice to applicant to vacate property confirmed employment relationship terminated and did not amount to dismissal. No personal grievance.;PENALTY: Applicant’s allegations respondent breached good faith obligations unfounded. No penalty. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4A;ERA s103(1)(b);ERA s114;ERA s114(1);ERA s115(c);Residential Tenancies Act 1986 s2 |
| Cases Cited | Credit Consultants Debt Service NZ Ltd v Wilson [2007] ERNZ 205;Creedy v Commissioner of Police [2006] ERNZ 517;Mathieson v Beecroft Garden Trust, 3 May 2011, 11/0029/DN,;Mathieson v Beecroft Garden Trust, 6 July 2011, 11/02911DN;Mathieson v Beecroft Garden Trust, 5 April 2012, 11/00511/DN;Mathieson v Beecroft Garden Trust, 5 April 2012, 11/864/DN |
| Number of Pages | 19 |
| PDF File Link: | 2012_NZERA_Christchurch_215.pdf [pdf 297 KB] |