| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 535 |
| Hearing date | 17 Dec 2012 - 19 Dec 2012 (3 days) |
| Determination date | 20 November 2013 |
| Member | T G Tetitaha |
| Representation | P Skelton, A Borchardt ; M Crotty, G Service |
| Location | Auckland |
| Parties | Duncan v Torchlight Investment Group Ltd and Anor |
| Other Parties | Pyne Gould Corp Ltd |
| Summary | ARREARS OF WAGES – Applicant sought arrears of wages – Whether applicant entitled to redundancy payments and bonus – Whether agreement applicant would receive bonus from second respondent – Applicant instructed general counsel to draft minute of board meeting with resolutions to implement bonus payment – Applicant drafted letter for signing by chairman confirming payment of bonus – Second respondent released statement on proposed share issue including payment of applicant’s share bonus – Second respondent taken over by fund (“AEP”) – Applicant instructed financial controller to pay bonuses to senior executives – Applicant instructed to reverse payment of bonuses – Whether relevant change of control of second respondent triggered payment of redundancy compensation – Whether first respondent reduced shareholding in second respondent to less than 10 per cent – PENALTY – Applicant sought penalty for second respondent’s late payment of holiday pay – Managing Director |
| Abstract | AUTHORITY FOUND –;ARREARS OF WAGES: Minute and letter drafted by applicant not evidence of agreement. Minute recorded meeting that never happened. Applicant aware sign-off from board and remuneration committee required for payment of bonus. No evidence of subsequent board meeting authorising bonus. Provision for payment in second respondent’s accounts not evidence of agreement to pay bonus. No concluded agreement to pay applicant’s bonus. Reversal of share payments detracted from applicant’s claim. AEP’s approval for large share issue required following takeover. No legal entitlement to share bonus. First respondent still exercised control through 80 per cent interest in AEP. First respondent had not lost control in manner contemplated by employment agreement. Applicant not entitled to redundancy payment. No arrears of wages.;PENALTY: Evidential basis to dispute applicant’s holiday records not basis to refuse payment. $2,000 penalty appropriate. Interest payable for lost use of holiday pay. |
| Result | Application granted (penalty) ; Penalty ($2,000)(payable to applicant) ; Interest (5%)(holiday pay) ; Application dismissed (arrears of wages) ; Costs reserved |
| Main Category | Arrears |
| Statutes | Companies Act 1993;Companies Act 1993 s18;Companies Act 1993 s18(1)(a);Companies Act 1993 s18(1)(b);Companies Act 1993 s18(1)(c);Companies Act 1993 s18(1)(d);Companies Act 1993 s18(1)(e);Companies Act 1993 s42;Companies Act 1993 s127(a);Companies Act 1993 s130;Companies Act 1993 Second Schedule;ERA s135;ERA s136(2);ERA Second Schedule cl11 |
| Cases Cited | Corbett v National Mutual Finance Ltd (1992) 5 PRNZ 386;Griffith v Sunbeam Corp Ltd unreported, Couch J, 28 July 2006, WC13/06;Kelly v Accident Rehabilitation and Compensation Insurance Corp unreported Palmer J, 24 March 1999, WC13/99;Levin Meats Ltd v Perfect Packaging Ltd (2011) 10 NZCLC 264,950;Lowe Walker Paeroa Ltd v Bennett [1998] 2 ERNZ 558;New Zealand Merchant Service Guild IUOW Inc v New Zealand Rail Ltd [1991] 2 ERNZ 587;RNZAF Museum Trust Board v Hunter unreported, Shaw J, 1 March 2000, WC11/00;Secretary for Education v New Zealand Educational Institute Te Riu Roa [2002] 2 ERNZ 470;Taiapa v Te Runanga O Turanganui A Kiwa t/a Turanga Ararau Private Training Establishment [2012] NZERA Auckland 252;Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] 2 NZLR 444 |
| Number of Pages | 12 |
| PDF File Link: | 2013_NZERA_Auckland_535.pdf [pdf 198 KB] |