| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 134 |
| Hearing date | 26 Feb 2015 - 27 Feb 2015 (2 days) |
| Determination date | 11 May 2015 |
| Member | TG Tetitaha |
| Representation | T Drake ; S Langton, C Hogg |
| Location | Auckland |
| Parties | Sheath v The Selwyn Foundation and Anor |
| Other Parties | Selwyn Care Ltd |
| Summary | JURISDICTION - Whether Authority had jurisdiction to consider applicant’s arrears of wages claim – Whether respondent continually breached employment agreement (“EA”) by failing to make insurance and pension fund payments every month - Applicant sought recovery of insurance and pension fund contributions - Applicant sought compliance order - UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent’s failure to grant salary increase - Chaplain |
| Abstract | AUTHORITY FOUND –JURISDICTION: Cause of action for breach of contract accrued first time respondent failed to make payments. Continual non-payment did not give rise to new causes of action. Application out of time. No jurisdiction to consider claims. In any event, no breach of contract because implied term in EA that applicant had to sign up to pension fund before age 65 and make own contributions before receiving employer contributions. Defaulting payments to be made to third parties so not wages or other monies payable to applicant. Applicant could not show loss so no damages. No draft compliance order given so Authority assumed for payment to third parties of amounts allegedly owed under EA. Respondent unable to comply as applicant over maximum age for insurance coverage or joining pension fund.UNJUSTIFIED DISADVANTAGE: EA did not guarantee salary increase, only remuneration review. No bad motive on part of respondent for declining salary increase. Late performance review only minor defect. No unjustified disadvantage. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA;ERA s131;ERA s131(1)(a);ERA s142;ERA s161(1)(b);ERA s161(1)(g);KiwiSaver Act 2006 |
| Cases Cited | Attorney-General v New Zealand Post-Primary Teachers Association [1992] 2 NZLR 209 (CA);Haig v Edgewater Developers Ltd (No 5) [2012] NZEmpC 189, [2012] ERNZ 543;Reid v NZ Fire Service Commission [1996] 1 ERNZ 228 (EmpC);Rooney Earthmoving Ltd v McTague [2012] NZEmpC 63, [2012] ERNZ 273;Vickery v Waitaki International Ltd [1992] 2 NZLR 58 (CA) |
| Number of Pages | 12 |
| PDF File Link: | 2015_NZERA_Auckland_134.pdf [pdf 339 KB] |