| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 178 |
| Hearing date | 14 - 15 Mar 2013 |
| Determination date | 09 May 2013 |
| Member | R A Monaghan |
| Representation | S Langton, N Edlin ; NL Tither (in person) |
| Parties | Horton Media Ltd v Tither |
| Summary | BREACH OF CONTRACT – RECOVERY OF MONIES – Applicant sought damages for loss incurred by respondent’s appropriation of applicant’s property without consent – Authority found commonly understood that salary included payment for all hours worked – Found respondent’s impression could claim payment for all time worked outside ordinary hours did not acknowledge distinct statutory treatment of time off in lieu of time worked on public holidays and did not distinguish between differing treatment of overtime for salaried and waged employees – Found respondent had no entitlement to payments and breached statutory and implied obligations in employment agreement (“EA”) to deal with applicant’s money faithfully, act in good faith and not appropriate applicant’s property for respondent’s own use without consent – Found applicant entitled to recover KiwiSaver contributions made on unauthorised payments, money taken by respondent without authorisation from related company’s account and special damages for costs involved in investigating unauthorised payments – Respondent to pay applicant $721,994 damages – Interest payable – PENALTY – Applicant sought penalty for respondent’s breach of EA and good faith duty – Found nothing gained by imposition of penalty given remedies ordered already – No penalty – COUNTERCLAIM – UNJUSTIFIED DISADVANTAGE – Respondent claimed unjustifiably disadvantaged by suspension – Found circumstances not so pressing as to justify respondent’s immediate suspension, not appropriate to impose suspension at airport and suspension predetermined – Found subsequent findings as to extent of respondent’s conduct meant either suspension justified or respondent not entitled to remedy – COUNTERCLAIM – ARREARS OF WAGES – Respondent sought arrears of wages – Found respondent’s resignation indicated intention employment relationship end immediately – No arrears of wages – COUNTERCLAIM – PENALTY – Respondent sought penalty for applicant’s breach of good faith duty – Found circumstances surrounding respondent’s suspension did not amount to breach of good faith duty – No penalty – General manager |
| Abstract | Respondent employed by applicant as general manager. Applicant sought damages for loss incurred by respondent’s appropriation of applicant’s property without consent. Applicant sought penalty for respondent’s breach of employment agreement (“EA”) and both parties sought penalty for other party’s breach of good faith duty. Respondent claimed unjustifiably disadvantaged by suspension and sought arrears of wages. After becoming aware respondent may have sought and received payments not entitled to, applicant’s chief executive (“H”) examined payroll records and found respondent received $60,000 not entitled to. H met respondent after arrival at overseas airport, informed respondent investigation to be conducted and suspended respondent. Respondent claimed no provision in EA allowing applicant to suspend respondent, suspension imposed in public place and respondent had no opportunity to comment on suspension. Respondent returned to New Zealand and resigned with immediate effect. Respondent claimed entitled to be paid in lieu of notice. Applicant sought damages for unauthorised payments made to respondent, including from account of related company, special damages for investigation costs, and KiwiSaver contributions and statutory entitlements based on unauthorised payments. Respondent accepted made payments to self but claimed some payments in lieu of time off and respondent entitled to payments in order to compensate for long hours worked. Respondent claimed nothing in EA provided payment of salary included payment for all hours worked, H authorised payments and applicant’s practice to make such payments.;AUTHORITY FOUND –;BREACH OF CONTRACT – RECOVERY OF MONIES: Authority made orders protecting personal information contained in documents supplied to Authority. Commonly understood that salary included payment for all hours worked. Parties had amended respondent’s EA allowing respondent to take paid alternative holiday for work done on qualifying public holiday or, with applicant’s consent, to exchange alternative holiday for payment. However, no grounds for respondent to extend provisions of amendment to cover any work performed outside ordinary hours and applicant’s consent not given for any payment in lieu of time off. H accepted told respondent could take time off in lieu of long hours but did not tell respondent could claim payment in exchange for lieu time, without consent and without limit. Respondent’s impression could claim payment for all time worked outside ordinary hours did not acknowledge distinct statutory treatment of time off in lieu of time worked on public holidays and did not distinguish between differing treatment of overtime for salaried and waged employees. No grounds for respondent to conclude arrangements for two salaried employees to be paid for certain hours worked outside ordinary hours extended to respondent. Respondent had no entitlement to payments and breached statutory and implied obligations in EA to deal with applicant’s money faithfully, act in good faith and not appropriate applicant’s property for respondent’s own use without consent. Applicant entitled to recover KiwiSaver contributions made on unauthorised payments, money taken by respondent without authorisation from related company’s account and special damages for costs involved in investigating unauthorised payments. Respondent to pay applicant $721,994 damages. Interest payable.;PENALTY: Respondent breached EA and good faith duty but nothing gained by imposition of penalty given remedies ordered already. No penalty.;COUNTERCLAIM – UNJUSTIFIED DISADVANTAGE: No provision in EA allowing applicant to suspend respondent and, while reason for concern at time of suspension, circumstances not so pressing as to justify respondent’s immediate suspension. Not appropriate to impose suspension at airport, respondent had no opportunity to comment on allegations or prospect of suspension and suspension predetermined. However, subsequent findings as to extent of respondent’s conduct meant either suspension justified or respondent not entitled to remedy.;COUNTERCLAIM – ARREARS OF WAGES: Tone and content of respondent’s resignation indicated intention employment relationship end immediately rather than after notice period. No arrears of wages.;COUNTERCLAIM – PENALTY: Circumstances surrounding respondent’s suspension did not amount to breach of good faith duty. No penalty. |
| Result | Application granted (breach of contract – recovery of monies) ; Damages ($721,994.34) ; Interest (5%) ; Applications dismissed (penalty)(counterclaim – unjustified disadvantage)(counterclaim – arrears of wages)(counterclaim – penalty) ; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | ERA s103A;ERA s103A(2);ERA s103A(3);ERA s103A(4);ERA s103A(5);ERA s162;Holidays Act 2003 |
| Cases Cited | Attorney-General v Gilbert [2002] 1 ERNZ 31 ; [2002] 2 NZLR 342;Auckland Regional Council v Tilialo unreported, R Monaghan, 15 October 2009, AA 368/09;Binnie v Pacific Health Ltd [2002] 1 ERNZ 438;Mason Engineers (NZ) Ltd v Hodgson (No 4) [2011] NZEmpC 147;Salt v Fell, Governor for Pitcairn, Henderson, Ducie and Oeno Islands [2008] ERNZ 155 ; [2008] 3 NZLR 193 |
| Number of Pages | 18 |
| PDF File Link: | 2013_NZERA_Auckland_178.pdf [pdf 294 KB] |