| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 80 |
| Hearing date | 3 Jun 2015 |
| Determination date | 15 June 2015 |
| Member | D Appleton |
| Representation | R M Thompson ; (no appearance) |
| Location | Christchurch |
| Parties | Ali v Abhisek Quality Foods Ltd t/a Bombay Palace Indian Restaurant Wanaka |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by respondent's failure to pay wages and holiday pay - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - Accommodation allowance - Provision of accommodation - BREACH OF CONTRACT - Applicant sought damages for damage to personal property when locked out of house - PENALTY - GOOD FAITH - Applicant sought penalties for respondent’s failure to provide wage and time records on request, breach of good faith obligations, breach of employment agreement (“EA”) and breach of Holidays Act 2003 - COUNTERCLAIM - BREACH OF CONTRACT - Respondent sought damages for applicant’s breach of EA - Whether applicant failed to charge for beer and wine - No appearance for respondent - Chef |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE: Applicant unjustifiably disadvantaged by respondent’s failure to pay wages and holiday pay. REMEDIES: No contributory conduct. $5,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Absence of time and wage records. Applicant’s evidence not entirely accepted but informed calculation of total hours worked. Respondent failed to pay wages stipulated in EA and statutory minimum wage. Respondent not entitled to pay applicant’s holiday pay together with wages. Accommodation provided by respondent’s director in personal capacity not by respondent. Respondent to pay applicant $21,921 arrears of wages and $5,304 arrears of holiday pay. Interest payable.;BREACH OF CONTRACT: Accommodation arrangement private matter. No jurisdiction to consider applicant’s claims relating to damage to personal property when applicant locked out of house. No breach of contract.;PENALTY - GOOD FAITH: $5,000 penalty appropriate for respondent’s failure to produce wage and time records. Respondent’s failure to pay the wages applicant contractually and statutorily entitled to deliberate, serious and sustained breach of good faith. $5,000 penalty appropriate for respondent’s breach of good faith. No further penalty for breach of contract or Holidays Act as these actions covered by other penalties. $10,000 penalty awarded.;COUNTERCLAIM - BREACH OF CONTRACT - No evidence provided by respondent. No breach of contract. |
| Result | Applications granted (unjustified disadvantage)(arrears)(penalty) ; Arrears of wages ($21,921.13) ; Arrears of holiday pay ($5,304.56) ; Interest (5%) ; Compensation for humiliation etc ($5,000) ; Penalty ($10,000)(payable to Crown) ; Applications dismissed (breach of contract)(counter claim) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s4A - ERA s4(1) - s4(1)(c) - ERA s5 - ERA s124 - ERA - ERA s130 - ERA s130(2) - ERA s130(4) - ERA s103(1) - ERA s103A - ERA s132 - ERA s134 - ERA s134(1) - ERA Second Schedule cl11 - Holidays Act 2003 - Holidays Act 2003 s16 - Holidays Act 2003 s16(1) - Holidays Act 2003 s16(4) - Holidays Act 2003 s21 - Holidays Act 2003 s21(2) - Holidays Act 2003 s25 - Holidays Act 2003 s28 - Holidays Act 2003 s28(4) - Holidays Act 2003 s50 - Holidays Act 2003 s56 - Holidays Act 2003 s75 - Holidays Act 2003 s75(2)(a) - Holidays Act 2003 75(2)(c) -Holidays Act 2003 75(2)(e) - Holidays Act 2003 s84 - Judicature Act 1908 s87(3) - Judicature Act (Prescribed Rate of Interest) Order 2011 r4 - Minimum Wage Act 1983 - Minimum Wage 1983 Act s6 - Minimum Wage 1983 Act s7 - Minimum Wage Act 1983 s11 - Wages Protection Act 1983 |
| Cases Cited | Law v Board of Trustees of Woodford House [2014] NZEmpC 25, (2014) 11 NZELR 355 |
| Number of Pages | 24 |
| PDF File Link: | 2015_NZERA_Christchurch_80.pdf [pdf 350 KB] |