| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 204 |
| Hearing date | 13 May 2014 |
| Determination date | 23 May 2014 |
| Member | R Larmer |
| Representation | H Wendelborn ; No appearance |
| Location | Auckland |
| Parties | Newall v Forte Alpha Operations Pty Ltd and Anor |
| Summary | JURISDICTION - Whether applicant employee - PRACTICE AND PROCEDURE - Identity of employer - Respondents incorporated in Australia - PENALTY - GOOD FAITH - Applicant sought penalty for first respondent's breach of employment agreement (EA"), breach of good faith and failure to keep and provide wage and time records - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages, holiday pay and KiwiSaver - RECOVERY OF MONIES - Applicant sought recovery of business expenses - UNJUSTIFIED DISMISSAL - Dismissal - Applicant claimed unjustifiably dismissed by respondent - No appearance for respondent - Client specialist" |
| Abstract | AUTHORITY FOUND -;JURISDICTION: Fact employer named in EA not legal entity and EA not signed by employer did not contradict existence of employment relationship. Parties acted consistently with mutual intention to create employment relationship. Applicant employee.;PRACTICE AND PROCEDURE: Applicant employed by first respondent.;PENALTY - GOOD FAITH: Applicant did not agree to accept payment on ad hoc basis. First respondent breached applicant's EA seven times by failing to pay full salary amount, seven times by failing to make salary payment on time, seven times by failing to pay employer's KiwiSaver contribution each month and seven times by failing to remit PAYE to Inland Revenue Department on applicant's behalf each month. First respondent breached EA by failing to pay holiday pay on termination of employment relationship. First respondent breached applicant's EA 29 times. First respondent continually lead applicant to believe salary would be paid and provided range of excuses for non-payment. First respondent breached good faith duty by deliberately misleading and deceiving applicant regarding non-payment of remuneration and by failing to be active and constructive in establishing and maintaining productive employment relationship. First respondent failed to keep wage and time records or provide access to records on request. Appropriate to adopt totality approach in assessing appropriate penalty. First respondent's breaches deliberate, serious and sustained, and resulted in considerable stress and hardship to applicant and applicant's family. First respondent derived benefit from applicant's services while not paying applicant's contractual remuneration and deliberately misled or deceived applicant in order to convince applicant to continue working. Important to send unequivocal message that not paying for employees' work wholly unacceptable. $30,000 penalty appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: First respondent to pay applicant $50,324 arrears of wages, $5,894 arrears of holiday pay and $2,146 arrears of KiwiSaver. Interest payable.;RECOVERY OF MONIES: Applicant not reimbursed for business expenses. First respondent to pay applicant $2,119 recovery of monies. Interest payable.;UNJUSTIFIED DISMISSAL: First respondent dismissed applicant by locking applicant out of IT system in response to applicant's final letter about salary arrears. Even if applicant not actually dismissed, applicant constructively dismissed as resignation reasonably foreseeable and acceptable response to first respondent's multiple and ongoing breaches of contractual and statutory rights. Dismissal unjustified. REMEDIES: No contributory conduct. First respondent to pay applicant $4,615 reimbursement of lost wages. $8,000 compensation appropriate. |
| Result | Applications granted ; Arrears of wages ($50,324.29) ; Arrears of holiday pay ($5,894.76) ; Arrears of KiwiSaver ($2,146) ; Recovery of monies ($2,119.13) ; Interest (5%) ; Penalty ($30,000)(payable to applicant) ; Reimbursement of lost wages ($4,615.38) ; Compensation for humiliation etc ($8,000) ; Costs reserved |
| Main Category | Penalty |
| Statutes | ERA;ERA s4(1)(b);ERA s4(1A);ERA s4(1A)(b);ERA s4A;ERA s6;ERA s103A;ERA s103A(2);ERA s124;ERA s128(2);ERA s130;ERA s130(1);ERA s130(2);ERA s130(4);ERA s132(1);ERA s132(2);ERA s134(1);ERA s134(2);ERA s135(5) |
| Cases Cited | Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 18 |
| PDF File Link: | 2014_NZERA_Auckland_204.pdf [pdf 272 KB] |