| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 329 |
| Hearing date | 30 Jul 2014 |
| Determination date | 07 August 2014 |
| Member | A Fitzgibbon |
| Representation | C Purcell ; G Bennett |
| Location | Auckland |
| Parties | Gladden v Able Owl XL Ltd |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - Commission payments - Whether applicant went through proper sales verification process - Whether applicant engaged in scam in order to obtain commission payments not entitled to - Whether applicant overpaid - No wage and time records - Applicant made redundant - UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by respondent's withdrawal of commission payments owed to applicant - PENALTY - GOOD FAITH - Applicant sought penalty for respondent's breach of good faith - Failure to participate in mediation process - Salesperson |
| Abstract | AUTHORITY FOUND -;ARREARS OF WAGES AND HOLIDAY PAY: Parties agreed applicant entitled to both points commission" and "performance commission". Process for checking commission claims did not state commission would not be paid if supporting evidence not provided. In any event, applicant's verification process differed from other sales staff. Applicant produced sufficient information to payroll from which commission could be calculated. Respondent's withdrawal of proposed commission payment unilateral and unjustifiable. Respondent's description of applicant's actions as scam unsupported and inflammatory. Respondent to pay applicant $4,694 arrears of wages. Interest payable. Respondent to pay applicant $376 arrears of holiday pay.;UNJUSTIFIED DISADVANTAGE: Withdrawing commission payments without discussion or notification unfair. Respondent's subsequent attempt to justify action by alleging applicant failed to follow sales verification procedure not action of fair and reasonable employer. Respondent's allegation applicant implemented scam inflammatory, incorrect and unjustified. Applicant unjustifiably disadvantaged by respondent's withdrawal of commission payments. REMEDIES: No contributory conduct. $2,000 compensation appropriate.;PENALTY - GOOD FAITH: Respondent's refusal to attend mediation arrogant and not in good faith. However, applicant no longer employee at time of respondent's refusal. No breach of good faith. No penalty." |
| Result | Applications granted (arrears of wages and holiday pay)(unjustified disadvantage) ; Arrears of wages ($4,694) ; Interest (5%) ; Arrears of holiday pay ($376.32) ; Compensation for humiliation etc ($2,000) ; Application dismissed (penalty - good faith) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA;ERA s4;ERA s103(1)(a);ERA s103(1)(b);ERA s103A;ERA s103A(2);Holidays Act 2003;Judicature Act 1908 s87 |
| Number of Pages | 10 |
| PDF File Link: | 2014_NZERA_Auckland_329.pdf [pdf 239 KB] |