| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 141 |
| Hearing date | 7 Apr 2014 |
| Determination date | 11 April 2014 |
| Member | A Fitzgibbon |
| Representation | R Bryant ; S Langton |
| Location | Auckland |
| Parties | Gordon v Adshel New Zealand Ltd |
| Summary | DISPUTE - Parties disputed whether respondent had discretion to pay commission under employment agreement (EA") - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - Applicant not paid commission for final month because not employed by respondent when commission paid out - Account executive" |
| Abstract | AUTHORITY FOUND -;DISPUTE: Plain wording of EA clear that respondent had discretion whether to make commission payment and amount of any payment once scheme commenced. Question answered in favour of respondent.;ARREARS OF WAGES AND HOLIDAY PAY: Issues concerning applicant having insufficient forward bookings and 'mentally checking out' not raised with applicant as reasons for non-payment of final month's commission. No suggestion during employment applicant performance managed with potential for disciplinary outcome. Applicant not made aware at any time that payment of commission following resignation dependant on function of payroll. Failure to pay final month's commission and attempt to justify failure by reference to performance concerns not raised with applicant not action of fair and reasonable employer. Exercise of respondent's discretion subject to obligation to act fairly and reasonably. Respondent to pay applicant arrears of wages, quantum to be determined. Interest payable. Holiday pay not payable on discretionary payment excluded from definition of gross earnings" in Holidays Act 2003. No arrears of holiday pay." |
| Result | Application granted (arrears of wages) ; Arrears of wages (quantum to be determined) ; Interest (5%) ; Question answered in favour of respondent ; Application dismissed (arrears of holiday pay) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s103(1)(a);ERA s103(1)(b);ERA s103A;ERA s103A(2);ERA s129;Holidays Act 2003;Judicature Act 1908 s87 |
| Cases Cited | New Zealand Nurses Organisation v Whangaroa Health Service Trust unreported, Y Oldfield, 19 July 2010, AA326/10;Silver Fern Farms Ltd v New Zealand Meat Workers and Related Trade Unions Inc [2010] ERNZ 317;Terson Industries Ltd v Loder (2009) 6 NZELR 345;Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] 2 NZLR 444 |
| Number of Pages | 12 |
| PDF File Link: | 2014_NZERA_Auckland_141.pdf [pdf 268 KB] |