| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 298 |
| Hearing date | 6 May 2013 |
| Determination date | 12 July 2013 |
| Member | R A Monaghan |
| Representation | T Grimwood ; D Andrews |
| Location | Rotorua |
| Parties | Cox v DJ Thompson Building Services Ltd |
| Summary | BREACH OF CONTRACT – Applicant sought damages for respondent’s breaches of oral employment agreement – Whether respondent failed to pay wages at agreed rate, failed to honour offer of partnership or share of profits, failed to pay costs associated with work-related use of personal vehicle and failed to return tools in perfect working order – Applicant declined alternative work to accept offer – Respondent agreed to pay running costs on understanding vehicle would be used for business purposes – Whether respondent required to cover cost of servicing and repairing car – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Rate of pay agreed orally – Whether rate of pay exclusive of tax – Payments to applicant varied – Applicant sought payment for work performed on public holidays – GOOD FAITH – Whether respondent’s actions amounted to breach of good faith – UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – No written employment agreement – Applicant advised no work available – Respondent’s business relied on kohanga reo projects – Applicant unable to perform alternative cleaning work – Whether applicant’s employment terminated – COUNTERCLAIM – RECOVERY OF MONIES – Respondent sought recovery of outstanding loan, payment made on applicant’s behalf and purchase of television – Respondent sought recovery of monies in regard to purchases of materials, payments made to company, expenses incurred as result of unauthorised trips and purchase of laptops – Builder |
| Abstract | AUTHORITY FOUND –;BREACH OF CONTRACT: Respondent underpaid wages. No discussion entered into regarding sharing of profits, apportioning partners’ shares, or operation of partnership. Respondent failed to pursue prospect of partnership with applicant. Respondent not obliged to reimburse servicing and repair costs of car. Tools made available for applicant to collect. Parties urged to resolve matters. No damages.;ARREARS OF WAGES AND HOLIDAY PAY: No agreement pay rate exclusive of tax. Applicant underpaid. Applicant owed holiday pay. Applicant not entitled to payment for public holidays. Respondent to pay applicant $4,810 arrears of wages and $5,383 arrears of holiday pay.;GOOD FAITH: Respondent’s failure to act on partnership in timely way breach of good faith. No quantifiable loss suffered or penalty sought.;UNJUSTIFIED DISMISSAL: Redundancy genuine. Respondent did not provide sufficient information. No prospect of alternative to redundancy. Dismissal unjustified. REMEDIES: No contributory conduct. Applicant commenced alternative employment immediately. No injury to feelings. No award made.;COUNTERCLAIM – RECOVERY OF MONIES: Applicant accepted monies owing for loan, payment made on applicant’s behalf and purchase of television. No evidence to support other claims. Laptops purchased prior to applicant commencing employment. Applicant to pay respondent $4,219 recovery of monies. |
| Result | Applications granted (arrears of wages and holiday pay)(counterclaim – recovery of monies) ; Arrears of wages ($4,810.63) ; Arrears of holiday pay ($5,383.32) ; Recovery of monies ($4,219) ; Application partially granted (unjustified dismissal) ; Applications dismissed (breach of contract)(good faith) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4;ERA s161;Wages Protection Act 1983 |
| Cases Cited | Newick v Working In Ltd (2012) 10 NZELC 79-015;Walker Corp Ltd v O’Sullivan [1996] 2 ERNZ 513 |
| Number of Pages | 13 |
| PDF File Link: | 2013_NZERA_Auckland_298.pdf [pdf 199 KB] |