| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 142 |
| Hearing date | 15 Nov 2012 |
| Determination date | 19 November 2012 |
| Member | G J Wood |
| Representation | R Jamieson ; no appearance |
| Location | Wellington |
| Parties | Lewis v Harbour City Tow & Salvage (2003) Ltd |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Authority found although applicant stopped working at respondent, applicant told still employee and entitled to be paid until clear respondent no longer intended to continue applicant’s employment – Respondent to pay applicant $8,956 arrears of wages and $18,360 arrears of holiday pay – Interest payable – RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – Found applicant never raised constructive dismissal grievance until more than a year after employment ended – Grievance not raised within 90 days – PENALTY – Applicant sought penalty for respondent’s failure to produce wage and time records – Found clear breach of requirement for employer to supply employee’s representative with employee’s wage and time records – $2,500 penalty appropriate – COSTS – One day investigation meeting – Applicant sought $1,500 contribution towards costs – Respondent to pay applicant $1,500 contribution towards costs – Tow truck driver |
| Abstract | Applicant employed by respondent as tow truck driver. Applicant claimed unjustifiably dismissed by respondent. Applicant sought arrears of wages and holiday pay and penalty for respondent’s failure to produce wage and time records. Applicant sought $1,500 contribution towards costs. No appearance for respondent. Six weeks after applicant stopped being paid, applicant informed by respondent applicant still employee and payment would be made. Applicant clear did not have job at respondent when still not paid. One year later applicant claimed constructively dismissed. Applicant claimed not paid holiday pay fully. Respondent accepted owed applicant arrears but disputed quantum. Respondent failed to produce wage and time records when requested by applicant’s representative.;AUTHORITY FOUND –;ARREARS OF WAGES AND HOLIDAY PAY: Although applicant stopped working at respondent, applicant told still employee and entitled to be paid until clear respondent no longer intended to continue applicant’s employment. Respondent to pay applicant $8,956 arrears of wages and $18,360 arrears of holiday pay. Interest payable.;RAISING PERSONAL GRIEVANCE: Applicant never raised constructive dismissal grievance until more than a year after employment ended. No consent from respondent to grievance being raised out of time and no application for leave to raise grievance out of time. Grievance not raised within 90 days.;PENALTY: Clear breach of requirement for employer to supply employee’s representative with employee’s wage and time records. $2,500 penalty appropriate.;COSTS: One day investigation meeting. Applicant had trouble getting responses from respondent. Respondent to pay applicant $1,500 contribution towards costs. |
| Result | Applications granted (arrears of wages and holiday pay)(penalty) ; Arrears of wages ($8,956.24) ; Arrears of holiday pay ($18,360.29) ; Interest (5%) ; Penalty ($2,500)(payable to Crown) ; Costs in favour of applicant ($1,500) ; Application dismissed (raising personal grievance) |
| Main Category | Arrears |
| Statutes | ERA;ERA s130;ERA Second Schedule cl12 |
| Number of Pages | 7 |
| PDF File Link: | 2012_NZERA_Wellington_142.pdf [pdf 164 KB] |