| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 91 |
| Hearing date | 1 Apr 2014 - 2 Apr 2014 (2 days) |
| Determination date | 25 June 2014 |
| Member | H Doyle |
| Representation | M Henderson, G Biggs ; E Butcher |
| Location | Christchurch |
| Parties | White v Telecom New Zealand Ltd |
| Summary | RAISING PERSONAL GRIEVANCE - Whether grievance raised within 90 days - Applicant sought leave to raise grievance out of time - Applicant claimed unjustifiably disadvantaged by retrospective adjustment of sales targets and retrospective changes to claiming rules for commission payments - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - Client manager |
| Abstract | AUTHORITY FOUND -;RAISING PERSONAL GRIEVANCE: Respondent aware through e-mail communications and meetings that applicant did not agree with retrospective adjustment to sales targets or changes to claiming rules. E-mails from applicant viewed separately and together raised dispute with respondent about discounting of applicant's claims under claiming rules but did not go so far as to raise grievance. Grievance not raised within 90 days. Considerable lengths applicant went to in order to resolve claim did not amount to exceptional circumstances as respondent did not consider issue as personal grievance against potential legal consequences. Applicant's terms and conditions of employment included reference to raising of grievance within 90 days. Applicant spoke to lawyer but did not instruct lawyer to raise grievance. Failure to raise grievance within 90 days not occasioned by exceptional circumstances. Leave to raise grievance out of time declined.;ARREARS OF WAGES AND HOLIDAY PAY: E-mail did not amount to written approval of retrospective target adjustments by required person under sales incentive plan as amendment not finalised. Unfortunate that subsequent e-mail approving retrospective change referred to incorrect threshold for changes being made due to over achievement against targets. No basis to imply term into sales incentive plan that respondent able to amend targets retrospectively after relevant year had ended. Applicant entitled to be reimbursed for commission lost as result of retrospective increase to sales target. Applicant's claims under one target appeared to meet requirements of targets document. Respondent had ability to assess if claims made correctly during relevant year and require applicant to claim differently. More likely than not respondent changed rules after realising omission in rules and applicant should not otherwise have known claims to be made in different manner. Unclear what contractual provisions allowed respondent to discount applicant's claims. Applicant entitled to rely on claiming rules in remuneration agreement and entitled to be reimbursed for reduction in commission due to retrospective discounting of claims. Appropriate to delay making formal orders given discrepancies in quantum claimed by applicant. |
| Result | Application granted (arrears of wages and holiday pay) ; Application dismissed (raising personal grievance) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s65;ERA s103;ERA s114;ERA s114(1);ERA s114(2);ERA s114(3);ERA s114(4);ERA s115;Fair Trading Act 1986;Wages Protection Act 1983 |
| Cases Cited | Clark v Nelson Marlborough Institute of Technology (2008) 5 NZELR 628 |
| Number of Pages | 22 |
| PDF File Link: | 2014_NZERA_Christchurch_91.pdf [pdf 354 KB] |