| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 309 |
| Hearing date | 24 Jun 2014 |
| Determination date | 16 July 2014 |
| Member | J Crichton |
| Representation | S Maxfield ; S Langton, A Evans |
| Location | Auckland |
| Parties | McDaid v Huawei Technologies (New Zealand) Co Ltd |
| Summary | ARREARS OF WAGES - Applicant sought arrears of wages - Whether applicant promised bonus of three to four months salary during recruitment process - Whether applicant induced to enter employment agreement (EA") in reliance on misrepresentation - Whether respondent's chief executive ("Z") threatened applicant's employment if applicant persevered with bonus claim - Covert recording of meeting - Whether applicant presented with fait accompli with respect to request to remove sales incentive programme ("SIP") from applicant's remuneration" |
| Abstract | AUTHORITY FOUND -;ARREARS OF WAGES: Bonus payment always described as discretionary during parties' pre-employment negotiations. No reasonably savvy commercial person in applicant's position would expect to rely on receipt of bonus described as discretionary. Applicant had ample opportunity to be satisfied as to nature of bargain and senior commercial manager such as applicant would not have entered arrangement without giving agreement mature consideration. Respondent only stated historical quantum of bonus payments made to people in positions similar to applicant's. No misrepresentation regarding bonus entitlement. Applicant not induced to enter employment relationship by alleged misrepresentation. Applicant's interpretation of Z's statement as threat to employment inconsistent with full transcript of meeting and applicant's subsequent behaviour. Applicant agreed to removal of SIP from remuneration in return for payment as compensation for loss of benefit. Applicant not presented with fait accompli. Applicant not entitled to more money from previous year's SIP than respondent believed. Alteration to applicant's EA in writing as required by EA. Applicant accepted via e-mail that arrangement was concluded subject to preconditions being met. Even if no valid alteration to EA unconscionable to allow applicant to resile from understanding resulting in applicant receiving significant sum of money not contractually entitled to save for agreement applicant now wished to resile from. Applicant estopped by convention from resiling from agreement. Agreement to remove SIP from applicant's remuneration not voidable by respondent's improper conduct. No arrears of wages. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Arrears |
| Statutes | Contractual Remedies Act 1979;Contractual Remedies Act 1979 s4;Contractual Remedies Act 1979 s6;ERA s162 |
| Cases Cited | Brake v Grace Team Accounting Ltd unreported, A Dumbleton, 13 September 2010, AA409/10;Energy Venture Partners Ltd v Malabu Oil & Gas Ltd [2013] EWHC 2118 (Comm);Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd [2012] 1 WLR 3674 |
| Number of Pages | 19 |
| PDF File Link: | 2014_NZERA_Auckland_309.pdf [pdf 285 KB] |