| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 136 |
| Hearing date | 8 Oct 2012 |
| Determination date | 02 November 2012 |
| Member | P R Stapp |
| Representation | J Murphy ; B Davey-Hicks (in person) |
| Location | Palmerston North |
| Parties | Watson and Anor v Pridex Kitchens (PN) Ltd and Anor |
| Other Parties | Hobbs ; Davey-Hicks |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicants claimed unjustifiably disadvantaged by first respondent’s failure to consult applicants regarding termination of applicants’ employment and give notice – Authority found fact applicants did not receive notice due to first respondent’s failure to consult applicants – Applicants unjustifiably disadvantaged by first respondent’s failure to consult applicants and give notice – REMEDIES – No contributory conduct – $3,000 compensation appropriate for first applicant and $3,000 compensation appropriate for second applicant – ARREARS OF WAGES – Applicants sought arrears of wages – Found payment of four weeks wages in lieu of notice discretionary – No arrears of wages – PENALTY – Applicants sought penalty for second respondent’s aiding and abetting breach of applicants’ employment agreements (“EA”) – Found second respondent did not deliberately and maliciously use situation to default on obligations to applicants – No penalty – COUNTERCLAIM – RECOVERY OF MONIES – First respondent sought recovery of commission overpaid to applicants – Found no calculation completed at date of dismissal as to commission owed to first respondent by applicants, no deduction made from applicants’ final pay and no request under EAs for repayment of amount owed within four weeks from date of dismissal – No recovery of monies – Sales people |
| Abstract | Applicants employed by first respondent as sales people. Applicants claimed unjustifiably disadvantaged by first respondent’s failure to consult applicants regarding termination of applicants’ employment and give notice. Applicants sought arrears of wages from first respondent and penalty for second respondent’s aiding and abetting breach of applicants’ employment agreements (“EA”). Applicants involved in meeting with staff of first respondent’s franchiser (“franchiser”) in which financial position discussed. Two weeks later first respondent ceased trading. Applicants dismissed without notice. Franchiser arranged for EAs to be prepared for applicants in anticipation of applicants working for franchiser but discussions became acrimonious. Applicants claimed should be paid four weeks in lieu of notice. Applicants’ EAs provided commission would not be paid on files not closed at date of termination of employment and first respondent sought recovery of commission overpaid to applicants.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE: Unclear transfer of employment clause in applicants EAs applied as unclear whether respondent’s business transferred to franchiser. Fact applicants did not receive notice due to first respondent’s failure to consult applicants. Applicants could have been provided with notice much earlier given franchise agreement due to cease and applicants included in discussions with employees of franchiser. Applicants unjustifiably disadvantaged by first respondent’s failure to consult applicants and give notice. REMEDIES: No contributory conduct. $3,000 compensation appropriate for first applicant and $3,000 compensation appropriate for second applicant.;ARREARS OF WAGES: Payment of four weeks wages in lieu of notice discretionary. No arrears of wages.;PENALTY: Second respondent did not deliberately and maliciously use situation to default on obligations to applicants. Second respondent’s failure to provide wage and time records did not affect ability to resolve issue of failure to pay applicants in lieu of notice. No penalty.;COUNTERCLAIM – RECOVERY OF MONIES: No calculation completed at date of dismissal as to commission owed to first respondent by applicants, no deduction made from applicants’ final pay and no request under EAs for repayment of amount owed within four weeks from date of dismissal. First respondent paid first applicant commission in advance previously without deduction for sales not completed or any practice of repayment of money. More likely than not sales completed. No recovery of monies. |
| Result | Application granted (unjustified disadvantage); Compensation for humiliation etc ($3,000)(first applicant)($3,000)(second applicant); Applications dismissed (arrears of wages)(penalty)(counterclaim)(recovery of monies); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s130;ERA s134(2);Privacy Act 1993 |
| Number of Pages | 11 |
| PDF File Link: | 2012_NZERA_Wellington_136.pdf [pdf 198 KB] |