| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 28 |
| Hearing date | 25 Sep 2014 |
| Determination date | 30 January 2015 |
| Member | V Campbell |
| Representation | K Anderson ; J Douglas |
| Parties | McCambridge v Viridian Glass Ltd Partnership |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably disadvantaged by change to commission structure and withholding of commission by respondent - Applicant claimed unjustifiably dismissed by respondent - Deduction from wages - Misuse of sick leave - COUNTERCLAIM - RECOVERY OF MONIES - Respondent sought recovery of commission payment and unauthorised sick leave paid to applicant |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: No changes made to commission structure. Respondent invoked commission structure in accordance with structure's terms. Applicant not unjustifiably disadvantaged by change in commission structure. Nothing in commission structure document allowed respondent to withhold commission payments. No evidence applicant owed debt to respondent within meaning of deductions clause in employment agreement (EA"). Failure to pay commission when due breach of EA. Applicant unjustifiably disadvantaged by withholding of commission payment. Applicant's mother sick but lived outside New Zealand and not dependent on applicant for care. Applicant knew respondent would not support applicant taking sick leave to visit mother. Applicant intent on taking full period of leave in spite of being fully aware not allowed to take sick leave and number of annual leave days limited. Applicant used sick leave to augment annual leave. Dismissal justified. REMEDIES: No contributory conduct. Respondent to pay applicant $4,133 reimbursement of lost wages.;COUNTERCLAIM - RECOVERY OF MONIES: Requirement in commission structure for sales to be "correctly priced" applied to residential sales only. Nothing in commission structure required commercial sales to achieve minimum 40 per cent profit. No contractual right for respondent to seek reimbursement of commission payments. Applicant took sick leave without authorisation and in full knowledge any leave beyond certain date would not be approved. Applicant to pay respondent $1,524 recovery of monies." |
| Result | Applications granted (unjustified disadvantage)(counterclaim - recovery of monies) ; Reimbursement of lost wages ($4,133.94) ; Recovery of monies ($1,524.89) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA s174 |
| Cases Cited | Ashton v PMP Print Ltd ERA Christchurch CA104/07, 27 August 2007;Jonas v Menefy Trucking Ltd [2013] NZEmpC 200, [2013] ERNZ 651;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483 (CA);Taiapa v Te Runanga O Turanganui A Kiwa Trust, (T/A Turanga Ararau Private Training Establishment) [2013] NZEmpC 38, [2013] ERNZ 41 |
| Number of Pages | 17 |
| PDF File Link: | 2015_NZERA_Auckland_28.pdf [pdf 273 KB] |