| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 281 |
| Hearing date | 10 Dec 2012 |
| Determination date | 21 December 2012 |
| Member | D Appleton |
| Representation | P Brown ; J Goldstein |
| Location | Christchurch |
| Parties | McGowan v Minerva Farms Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant had resigned – Authority found evidence did not show applicant had resigned voluntarily – Found P accusing applicant of “ripping off” respondent by raising own stock on property, doing nothing for six months and telling applicant bank would not honour applicant’s pay cheque cumulatively amounted to clear repudiation of contract by respondent – Found reasonably foreseeable that applicant would have no choice but to resign – Applicant constructively dismissed – REMEDIES – No contributory conduct - $5,000 compensation appropriate - Respondent to pay applicant $5,927 reimbursement of lost wages - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Found when calculating applicant’s entitlement to holiday pay, cash value of accommodation provided by respondent should have been taken into account but Authority did not have jurisdiction to determine cash value of accommodation - No arrears of holiday pay relating to omission of cash value of accommodation – Found applicant entitled to arrears of holiday pay relating to two public holidays worked by applicant, parties to determine quantum - Authority not able to ascertain whether applicant worked extended periods - No arrears of wages relating to time off in lieu – Found more likely than not parties did not agree whether applicant would be paid for work on second farm - No arrears of wages relating to applicant’s work on second farm - RECOVERY OF MONIES – Applicant sought reimbursement of applicant’s petrol expenses – Found applicant’s refusal to supply completed log book meant applicant not entitled to any reimbursement for use of vehicle for personal use - Respondent to pay applicant $5,105 recovery of monies for applicant’s purchase of petrol for business use – PENALTY – Applicant sought penalty for respondent’s failure to provide written employment agreement (“EA”) – Found respondent did not intend written EA would not be provided but respondent should have had better processes in place to prevent oversight - $1,000 penalty appropriate - COUNTERCLAIM – RECOVERY OF MONIES - Respondent counterclaimed for rent owing for applicant’s occupation of respondent property, grazing fee applicant agreed would pay respondent for allowing applicant to graze own animals on respondent’s property and reimbursement for personal telephone calls paid for by respondent – Found not binding agreement between parties as to whether rent would be paid by applicant while occupied respondent’s property - No recovery of monies relating to accommodation provided by respondent – Found Authority had jurisdiction to order applicant to pay grazing fee - Applicant to pay respondent $14,141 recovery of monies for grazing fee - Applicant to reimburse respondent for unpaid telephone expenses - Applicant to pay respondent $914 recovery of monies for telephone expenses - Farm Manager |
| Abstract | Applicant employed as farm manager. Applicant claimed unjustifiably dismissed by respondent. Applicant sought arrears of wages and holiday pay, penalty for respondent’s failure to provide written employment agreement (“EA”) and reimbursement of applicant’s petrol expenses. Applicant’s claim for arrears of wages included arrears for work carried out by applicant on property (“second farm”) owned by partnership in which respondent owner (“P”) was partner. Respondent claimed applicant resigned and counterclaimed for rent owing for applicant’s occupation of respondent property, grazing fee applicant agreed would pay respondent for allowing applicant to graze own animals on respondent’s property and reimbursement for personal telephone calls paid for by respondent. Applicant denied parties agreed applicant would pay respondent rent. Applicant claimed did not have written EA but parties agreed on salary, that applicant would have use of respondent vehicle and applicant could claim for petrol for reasonable personal use. P claimed when employment commenced told applicant would only allow very minimal personal use of respondent’s vehicle and agreed applicant would pay $100 weekly contribution towards rent. Respondent attempted to resolve matters year into employment but did not respondent to applicant’s letter disputing parties’ agreement. P sent applicant letter following year stating that applicant’s claim for reimbursement of petrol expenses excessive and payment would not be made until respondent received applicant’s logbook. Applicant refused to provide completed log book. Applicant proposed instead of being paid extra to work at second farm, respondent allow applicant to raise own animals in respondent's sheds and reimbursement of applicant’s petrol costs to be paid without logbook up to figure agreed by parties. Applicant claimed from date made proposal until employment terminated respondent did not reimburse applicant for any petrol costs. Applicant claimed was incident year later where parties disputed work done by applicant, P accused applicant of “ripping off” respondent as had not done anything for last six months, applicant had received last pay as bank would not honour further payment and employment terminated. Applicant sent P letter next day confirming belief had been dismissed by P day before. Applicant claimed attempted to discuss matter further with P but could not have sensible conversation. P responded had accepted applicant’s “resignation.” P claimed reference to bank not honouring any more cheques was because respondent in financial difficulty and had not dismissed applicant.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Evidence did not show applicant had resigned voluntarily. Termination of applicant’s employment not by mutual agreement. Applicant reasonably believed respondent thought applicant dishonest and would not be paid anymore. Matter appeared to be classic constructive dismissal claim although not claimed by applicant. P accusing applicant of “ripping off” respondent and telling applicant bank would not honour applicant’s pay cheque cumulatively amounted to clear repudiation of contract by respondent. Reasonably foreseeable that applicant would have no choice but to resign. Respondent had obligation to maintain productive relationship. Applicant constructively dismissed. REMEDIES: No contributory conduct. $5,000 compensation appropriate. Respondent to pay applicant $5,927 reimbursement of lost wages.;ARREARS OF WAGES AND HOLIDAY PAY: When calculating applicant’s entitlement to holiday pay, cash value of accommodation provided by respondent should have been taken into account but value of personal use of respondent’s vehicle should not have been taken into account as applicant only entitled to use vehicle for personal use occasionally. However Authority did not have jurisdiction to determine cash value of accommodation provided by respondent. No arrears of holiday pay relating to omission of cash value of accommodation. Applicant entitled to arrears of holiday pay relating to two public holidays worked by applicant, parties to determine quantum. Applicant had expectation of time off in lieu when worked extended periods but Authority not able to ascertain whether applicant worked extended periods. No arrears of wages relating to time off in lieu. More likely than not parties did not agree whether applicant would be paid for work on second farm. No arrears of wages relating to applicant’s work on second farm.;RECOVERY OF MONIES: Parties did not establish arrangement for applicant’s personal use of respondent’s vehicle. Not unreasonable for respondent to request applicant complete log book and request was not variation of parties’ employment agreement. Applicant’s refusal to supply completed log book meant applicant not entitled to any reimbursement for use of vehicle for personal use. Respondent to pay applicant $5,105 recovery of monies for applicant’s purchase of petrol for business use.;PENALTY: Respondent did not intend written EA would not be provided to applicant. Authority noted respondent part of large network of farms and respondent should have had better processes in place to prevent oversight. $1,000 penalty appropriate.;COUNTERCLAIM – RECOVERY OF MONIES: Not binding agreement between parties as to whether rent would be paid by applicant while occupied respondent’s property. No recovery of monies relating to accommodation provided by respondent. Authority had jurisdiction to order applicant to pay grazing fee. Applicant to pay respondent $14,141 recovery of monies for grazing fee. Applicant to reimburse respondent for unpaid telephone expenses. Applicant to pay respondent $914 recovery of monies for telephone expenses. |
| Result | Applications granted (unjustified dismissal, arrears of holiday pay, recovery of monies, penalty and counterclaims – recovery of monies) ; Compensation for humiliation etc ($5,000) ; Reimbursement of lost wages ($5,927.48) ; Arrears of holiday pay (parties to determine quantum) ; Recovery of monies ($5,105) ; Penalty ($1,000)(payable to applicant) ; Counterclaim – recovery of monies ($14.141.38)(grazing fee) ($914.31)(telephone expenses) ; Applications dismissed (arrears of wages) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(b);ERA s63A(3);ERA s103A;ERA s122;ERA s124;Holidays Act 2003 s10(1) |
| Cases Cited | B D M Grange Ltd v Parker [2005] ERNZ 343 ; [2006] 1 NZLR 353;Hawkins v Commissioner of Police [2007] ERNZ 762;Pain Management Systems (NZ) Ltd v McCallum unreported, Panckhurst J, 14 August 2001, CP72/01 |
| Number of Pages | 21 |
| PDF File Link: | 2012_NZERA_Christchurch_281.pdf [pdf 313 KB] |