| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 298 |
| Hearing date | 26 May 2014 |
| Determination date | 11 July 2014 |
| Member | R A Monaghan |
| Representation | S Taylor (in person) ; D Naden |
| Parties | Taylor v Tamaki Legal Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Constructive Dismissal - Applicant claimed unjustifiably dismissed by respondent - Failure to pay applicant's salary after respondent's bank took control of respondent's income - Whether employment agreement (EA") terminated by frustration - Whether failure to pay wages associated with suspension of employment relationship by agreement - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - GOOD FAITH - Applicant claimed respondent breached duty of good faith - BREACH OF CONTRACT - Applicant claimed respondent breached obligations to assist applicant achieve supervised provider status and to advance applicant's professional development - Solicitor" |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Failure to pay applicant's wages caused applicant's resignation. Reasonably foreseeable that such failure would lead to resignation. Failure to pay wages in full when due breach of duty. No express or implied agreement between parties that applicant would continue employment relationship but would remain off work without pay until respondent in position to pay. Assertion that suspension occurred could not circumvent respondent's obligation to pay wages or prevent applicant taking view that failure to pay was repudiatory of EA. Clause in EA allowing suspension without pay where serious problem arose could not be interpreted so widely as to apply to any serious problem experienced by respondent especially as distinguished from serious problem between parties. No lawful suspension. Applicant constructively dismissed. Failure to pay applicant capable of being dealt with under existing statutory and contractual provisions and performance of EA did not become radically different due to bank's actions. Any dispute between respondent and bank did not excuse respondent from obligations under EA. EA not frustrated. Circumstances meant that inevitable failure to raise possibility of termination of applicant's employment and no opportunity for applicant to provide feedback. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $1,250 reimbursement of lost wages. $3,500 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant entitled to payment of four weeks in lieu of notice. Applicant entitled to be paid wages owed at date of resignation together with holiday pay. Applicant not entitled to increased salary or incentive payment under EA as had not achieved supervised provider status. Respondent to pay applicant arrears of wages and holiday pay, quantum to be determined.;GOOD FAITH: No remedy sought in respect of alleged breach of good faith.;BREACH OF CONTRACT: Respondent did not make clear had practice of waiting three months before proceeding with employee's application for supervised provider status but no remedy for alleged breach sought. Respondent made such efforts as it could in circumstances to provide applicant with meaningful work and assist applicant's professional development. No damages. |
| Result | Applications granted (unjustified dismissal)(arrears of wages and holiday pay) ; Reimbursement of lost wages ($1,250) ; Compensation for humiliation etc ($3,500) ; Arrears of wages and holiday pay (quantum to be determined) ; Applications dismissed (good faith)(breach of contract) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4A;ERA s103A;ERA s128;ERA s133;IRA;Wages Protection Act 1983 |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;A Worker v A Farmer [2010] ERNZ 407 |
| Number of Pages | 12 |
| PDF File Link: | 2014_NZERA_Auckland_298.pdf [pdf 261 KB] |