| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 413 |
| Hearing date | 29 Sep 2014 |
| Determination date | 10 October 2014 |
| Member | R Larmer |
| Representation | H Wendelborn ; S Prestage (in person) |
| Location | Auckland |
| Parties | Newall v Prestage |
| Summary | PENALTY - Applicant sought penalty for respondent inciting, instigating, aiding or abetting employer's (F") breaches of employment agreement ("EA") - Respondent chief executive, sole director and shareholder of F - Authority found previously that F breached applicant's EA multiple times - Failure to pay salary in full and on time - Failure to pay KiwiSaver contributions or PAYE - Client specialist" |
| Abstract | AUTHORITY FOUND -;PENALTY: No evidence to support respondent's claims failure to pay applicant caused by faulty payroll system or former finance manager. Respondent mind" of F. Respondent hands-on director and dealt with applicant regarding employment related issues. Respondent aware obligations in applicant's EA being breached on ongoing basis. Respondent ultimately responsible for ensuring applicant paid and had power to direct that applicant be paid in full and on time. Twenty breaches of applicant's EA by F incited, instigated, aided or abetted by respondent. Appropriate to adopt totality approach to setting penalty. Applicant suffered real harm as result of breaches. Respondent deliberately led applicant to believe salary arrears about to be paid in order to keep applicant employed by F. Respondent's breaches deliberate, serious and sustained. Respondent caused F to deliberately mislead and deceive applicant. $30,000 penalty appropriate." |
| Result | Application granted ; Penalty ($30,000)(payable to applicant) ; Costs reserved |
| Main Category | Penalty |
| Statutes | ERA;ERA s134(2);ERA s135(2)(a);ERA s135(5) |
| Cases Cited | Newall v Forte Alpha Operations Pty Ltd [2014] NZERA Auckland 204;Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 17 |
| PDF File Link: | 2014_NZERA_Auckland_413.pdf [pdf 259 KB] |