| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 387 |
| Hearing date | 28 Jul 2014;15 Aug 2014 |
| Determination date | 17 September 2014 |
| Member | E Robinson |
| Representation | O Woodroffe ; S Sharma ; M Salim |
| Location | Auckland |
| Parties | Mail v Sumthong and ors |
| Other Parties | Salem, Ocean Tasty Seafood Ltd |
| Summary | PRACTICE AND PROCEDURE - Identity of employer - Applicant claimed employed by first respondent - Doctrine of undisclosed principal - Whether first respondent managed shop or leased shop - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - Whether applicant paid less than minimum wage - Whether applicant owed in respect of unpaid leave and for working on statutory holidays - Whether money deducted from applicant's wages as security for applicant not providing required notice when leaving employment - PENALTY - Whether penalty appropriate for failure to provide wage and time records |
| Abstract | AUTHORITY FOUND -;PRACTICE AND PROCEDURE: Second respondent guiding and controlling influence of third respondent. Business of shop effectively owned by third respondent. First respondent employed by third respondent as shop manager. Applicant knew second respondent owned shop and no documentary evidence first respondent held self out as applicant's employer. Applicant employed by third respondent.;ARREARS OF WAGES AND HOLIDAY PAY: Any deductions from applicant's wages made by first respondent rather than third respondent as applicant's employer. No written evidence substantiating applicant's claim owed money in respect of security for working out notice period. Applicant contracted to be paid certain amount per day net of tax. Authority unable to determine applicant's claims without knowing specific amount of PAYE tax that should have been deducted. Authority unable to determine amount of holiday pay owed to applicant until gross wages established. Applicant to establish with Inland Revenue Department appropriate rate of PAYE tax on applicant's earnings. Third respondent to pay applicant $700 as interim payment towards arrears of holiday pay and $600 as interim payment towards arrears of wages and holiday pay.;PENALTY: Not possible to determine whether applicant paid minimum wage in absence of wage and time records. Significant harm suffered by applicant being unable to provide Inland Revenue Department with reliable details to ensure compliance with tax liabilities. Third respondent's failure to provide wage and time records flagrant and deliberate. $8,000 penalty appropriate. |
| Result | Orders made ; Penalty ($8,000)(payable to Crown) ; Application dismissed (practice and procedure) ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s6;ERA s130;ERA s130(4);ERA s131;ERA s132(2);ERA Second Schedule cl12;Holidays Act 2003 s14;Holidays Act 2003 s23;Holidays Act 2003 s23(2);Holidays Act 2003 s50;Holidays Act 2003 s56;Minimum Wage Act 1983;Minimum Wage Act 1983 s6;Wages Protection Act 1983 s4 |
| Cases Cited | Colosimo v Parker (2007) 8 NZELC 98,622;Cuttance (t/a Olympus Fitness Centres) v Purkis [1994] 2 ERNZ 321;Mehta v Elliott (Labour Inspector) [2003] 1 ERNZ 451;Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 19 |
| PDF File Link: | 2014_NZERA_Auckland_387.pdf [pdf 317 KB] |