| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 38 |
| Hearing date | 13 - 14 Aug 2012 |
| Determination date | 22 February 2013 |
| Member | J Crichton |
| Representation | C Clifford, J Shaw ; S Wilson |
| Location | Timaru |
| Parties | Payne v Stravon Safaris Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – Whether applicant knew about proposed restructure – Refusal to accept alternative position – Whether applicant indicated willingness to leave respondent – Garden leave – ARREARS OF WAGES AND HOLIDAY PAY – UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by deductions from applicant’s salary – Applicant sought arrears of wages and holiday pay – Whether respondent entitled to make deductions from applicant’s salary regarding electricity and accommodation provided to applicant – Whether applicant’s obligation to contribute to electricity ended with new employment agreement – Whether respondent obligated to “gross up” applicant’s salary to compensate for tax paid on accommodation provided to applicant – Whether applicant had to seek approval before working on public holiday – Whether applicant required to work seven days per week – COUNTERCLAIM – BREACH OF CONTRACT – Respondent sought damages for loss caused by applicant’s failure to perform duties diligently and entering into business activity conflicting with applicant’s obligations to respondent – Whether applicant negligent in movement of fallow deer – Death of nine fallow deer – Whether applicant instructed to move deer – Whether applicant on foot or on quad bike – Use of dogs – Whether applicant should have aborted manoeuvre – Whether applicant responsible for death of six trophy stags – Whether applicant entitled to on-sell cast antlers and velvet for applicant’s benefit – COUNTERCLAIM – RECOVERY OF MONIES – Respondent sought recovery of telephone, airfare and internet costs – COUNTERCLAIM – PENALTY – Respondent sought penalty for applicant’s breach of good faith duty and breach of employment agreement – Game keeper farm manager |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: No malice or mixed motive in respondent’s decision to disestablish applicant’s position. Applicant aware of proposed restructure and effect of restructure on applicant’s position. Respondent undertook adequate consultation. Respondent sought actively to encourage applicant to accept new position. Dismissal justified.;ARREARS OF WAGES AND HOLIDAY PAY – UNJUSTIFIED DISADVANTAGE: Parties’ agreement applicant would contribute to electricity did not end with new employment agreement. Accommodation provided to applicant part of applicant’s gross taxable income. No requirement for respondent to “gross up” applicant’s salary to compensate for tax paid on accommodation provided to applicant. No unlawful deductions from applicant’s salary. No unjustified disadvantage. Applicant required to obtain approval before working on public holiday. No evidence applicant required to work seven days a week. Respondent to pay applicant arrears of wages and holiday pay, quantum to be determined. Leave reserved for parties to apply to Authority for orders regarding quantum.;COUNTERCLAIM – BREACH OF CONTRACT: Applicant failed to follow basic rules of animal husbandry in moving fallow deer. Move mismanaged disgracefully by applicant. Applicant failed to perform duties honestly and diligently and caused respondent loss of fallow deer through negligent or reckless errors, acts or omissions. Applicant not responsible for deaths of trophy stags. Applicant’s on-selling of antlers and velvet breach of employment agreement and duty of fidelity. Applicant to pay respondent $18,126 damages.;COUNTERCLAIM – RECOVERY OF MONIES: Applicant to pay respondent $7,239 recovery of monies.;COUNTERCLAIM – PENALTY: No penalty. |
| Result | Applications granted (arrears of wages and holiday pay)(counterclaim – breach of contract)(counterclaim – recovery of monies) ; Arrears of wages and holiday pay (quantum to be determined) ; Damages ($18,126.39) ; Recovery of monies ($7,239.27) ; Applications dismissed (unjustified dismissal)(unjustified disadvantage)(counterclaim – penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Health and Safety in Employment (Adventure Activities) Regulations 2011;Holidays Act 2003 s18;Holidays Act 2003 s81 |
| Cases Cited | Masonry Design Solutions v Bettany (2009) 6 NZELR 834;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825 |
| Number of Pages | 30 |
| PDF File Link: | 2013_NZERA_Christchurch_38.pdf [pdf 325 KB] |