| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 268 |
| Hearing date | 27 May 2012 |
| Determination date | 06 December 2012 |
| Member | H Doyle |
| Representation | J Kilkelly ; P Shaw |
| Location | Dunedin |
| Parties | Fleury v Ashburton Pastures Ltd Incorporating Hellaby Meats (SI) Ltd t/a Raeward Fresh |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Authority found some consistency between letter of offer sent to applicant and elements of initial employment contract (“initial EA”) – Found initial EA genuine – Found while human resource manager (“D”) believed all matters in dispute addressed and new employment agreement (“second EA”) binding, applicant’s response not clear – Found second EA not binding employment agreement – Found applicant did not acquiesce to second EA by delay or inaction – Found applicant’s employment governed by initial EA and applicant entitled to redundancy compensation – Respondent to pay applicant $14,319 arrears of wages and $2,451 arrears of holiday pay – Interest payable – RECOVERY OF MONIES – Applicant sought recovery of clothing purchases made on behalf of respondent – Found applicant paid for clothing for respondent’s staff – Respondent to pay applicant $1,103 recovery of monies – Interest payable – RAISING PERSONAL GRIEVANCE – Whether grievances raised within 90 days – Found applicant’s letter did not raise grievance about redundancy process and related solely to negotiation for second EA and entitlement to redundancy compensation – Found grievance concerning meeting with D not raised within 90 days – Found grievances not raised within 90 days – Manager |
| Abstract | Applicant employed by respondent as manager. Applicant sought arrears of wages and holiday pay and recovery of clothing purchases made on behalf of respondent. Applicant claimed employment governed by employment contract (“initial EA”) entered when applicant commenced employment including provision for redundancy compensation. Respondent questioned validity of initial EA. Thirteen years later applicant appointed manager and human resource manager (“D”) responsible for preparing employment agreement (“second EA”) for applicant. Second EA presented to applicant at meeting and D denied any conversation about redundancy compensation or fact applicant employed under initial EA. After taking second EA home applicant became concerned no provision for redundancy compensation or long service leave. Applicant made annotations on second EA but did not return annotated copy to D. D claimed called by applicant and agreed adding long service leave no problem. D sent applicant copy of amendment to second EA containing provision for long service leave. Applicant replied asking if D would send amended second EA and whether D took copy of second EA with applicant’s annotations. D claimed understood from e-mail agreement over second EA reached. Respondent claimed second EA superseded initial EA as applicant asked for agreement to be sent and continued in position for nine months without further comment. Applicant claimed did not agree to second EA. Nine months later applicant informed worksite to close. Applicant claimed unjustifiably disadvantaged by process leading to applicant’s redundancy and being subject to abusive comments during conversation with D. Respondent claimed applicant’s grievances not raised within 90 days. Applicant claimed grievances raised in letter disputing respondent’s assessment of applicant’s entitlement to redundancy compensation.;AUTHORITY FOUND –;ARREARS OF WAGES AND HOLIDAY PAY: Need for caution in reaching conclusion about genuineness of initial EA given original document could not be found. Some consistency between letter of offer sent to applicant and elements of initial EA. Applicant’s failure to advise respondent of initial EA unusual but applicant loyal to respondent, put energies into undertaking day to day duties and failure did not mean initial EA not genuine. Initial EA genuine. D not advised about initial EA during meeting to discuss second EA and unlikely discussion about redundancy compensation during meeting. Fact second EA not signed did not prevent finding second EA binding. While D believed all matters in dispute addressed and second EA binding, applicant’s response not clear. Second EA not binding employment agreement. Applicant not provided with second EA incorporating changes to be signed and did not acquiesce to agreement by delay or inaction. Applicant’s employment governed by initial EA and applicant entitled to redundancy compensation. Respondent to pay applicant $14,319 arrears of wages and $2,451 arrears of holiday pay. Interest payable.;RECOVERY OF MONIES: Applicant paid for clothing for respondent’s staff. Respondent to pay applicant $1,103 recovery of monies. Interest payable.;RAISING PERSONAL GRIEVANCE: Applicant’s letter did not raise grievance about redundancy process and related solely to negotiation for second EA and entitlement to redundancy compensation. Grievance concerning meeting with D not raised within 90 days. Grievances not raised within 90 days. |
| Result | Applications granted (arrears of wages and holiday pay)(recovery of monies) ; Arrears of wages ($14,319.08) ; Arrears of holiday pay ($2,451.90) ; Recovery of monies ($1,103.47) ; Interest (5%) ; Application dismissed (raising personal grievance) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ECA;ERA;ERA s114;Judicature Act 1908 s87(3) |
| Cases Cited | Creedy v Commissioner of Police [2006] ERNZ 517;Decom Ltd v Cleaver unreported, P Cheyne, 24 March 2009, CA 2A/09;Whyte v Creative Force Media Ltd unreported, R Monaghan, 19 January 2010, AA 23/10;Yeates v Jetstick Ltd unreported, A Dumbleton, 10 September 2008, AA 320/08 |
| Number of Pages | 18 |
| PDF File Link: | 2012_NZERA_Christchurch_268.pdf [pdf 240 KB] |