| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 201 |
| Hearing date | 27 May 2015 |
| Determination date | 03 July 2015 |
| Member | TG Tetitaha |
| Representation | R Alspach ; J Waugh |
| Location | Auckland |
| Parties | Hokai v Sharemilk Ltd |
| Summary | ARREARS OF HOLIDAY PAY – Applicant sought arrears of holiday pay – Deductions from wages – BREACH OF CONTRACT – Applicant sought damages for respondent’s failure to pay performance bonuses as required by employment agreement (“EA”) - PENALTY – GOOD FAITH – Applicant sought penalty for respondent’s failure to pay performance bonuses - COUNTERCLAIM - RECOVERY OF MONIES – Respondent sought recovery of monies for child support, repairs to applicant’s personal vehicle, personal purchases made by applicant, fuel purchases, and repairs to accommodation - Farm manager |
| Abstract | AUTHORITY FOUND –ARREARS OF HOLIDAY PAY: Respondent failed to keep accurate holiday records and failure prevented applicant from bringing accurate claim, so Authority accepted applicant’s evidence about holidays. Respondent to pay applicant $8,188 arrears of holiday pay.BREACH OF CONTRACT: EA did not require payment of performance bonuses every year, but did require parties to negotiate about them every year. Respondent failed to hold regular formal performance reviews and could not show proper evidence as to applicant’s poor performance leading to refusal to pay bonus. Respondent’s decision not to pay bonus unfair and unreasonable, and in breach of EA. Applicant could not show loss as applicant probably would not have met criteria for bonus anyway. No damages.PENALTY – GOOD FAITH: Respondent did not wilfully refuse to pay bonus and applicant did not pursue payment until after termination of employment. No penalty.COUNTERCLAIM - RECOVERY OF MONIES: EA allowed respondent to make deductions from wages for monies applicant owed under employment relationship. Respondent liable for failure to pay child support on behalf of applicant. Respondent not permitted to recover monies regarding child support payments respondent failed to collect. Applicant charged respondent for repairs to own vehicle without permission. Respondent entitled to deduct costs of repairs. Respondent entitled to deduct monies for applicant’s personal purchases as parties accepted debt incurred through applicant’s access to respondent’s accounts. Respondent not permitted to deduct monies for fuel purchases as not enough evidence to show personal purchases. Applicant not responsible for repairs to accommodation as no evidence parties agreed to that or that applicant caused damage. Applicant to pay respondent $5,768 recovery of monies. |
| Result | Applications granted (arrears of holiday pay)(counterclaim-recovery of monies) ; Arrears of wages ($8,188.81) ; Recovery of monies ($5,768.11) ; Application partially granted (breach of contract) ; Application dismissed (penalty-good faith) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s131;ERA s174(b);Holidays Act 2003;Holidays Act 2003 s16;Holidays Act 2003 s24;Holidays Act 2003 s28B;Holidays Act 2003 s44(1);Holidays Act 2003 s44A;Holidays Act 2003 s44B;Holidays Act 2003 s81;Holidays Act 2003 s81(2)(hb);Holidays Act 2003 s81(2)(i);Holidays Act 2003 s81(2)(j);Holidays Act 2003 s81(2)(ja);Holidays Act 2003 s81(2)(k);Holidays Act 2003 s81(2)(l);Holidays Act 2003 s81(3);Holidays Act 2003 s83(3);Holidays Act 2003 s83(4);Child Support Act 1991;Child Support Act 1991 s168 |
| Cases Cited | Corbett v National Mutual Finance Ltd (1992) 5 PRNZ 386 (CA);Griffith v Sunbeam Corporation Ltd EmpC Wellington WC13/06, 28 July 2006;Hakaraia v Foodstuff (Wellington) Co-operative Society Ltd [2001] ERNZ 105 (EmpC);Jackson v Panda Catering Ltd [2000] 1 ERNZ 292 (EmpC);Kelly v Accident Rehabilitation & Compensation Insurance Corporation EmpC Wellington WC13/99, 24 March 1999;Lowe Walker Paeroa Ltd v Bennett [1998] 2 ERNZ 558 (CA);NZ Merchant Service Guild IUOW Inc v NZ Rail Ltd [1991] 2 ERNZ 587 (LC);RNZAF Museum Trust Board v Hunter EmpC Wellington WC11/00, 1 March 2000;T v SAR Ltd ERA Christchurch CA126/05, 23 September 2005;Taiapa v Te Runanga O Turanganui A Kiwa t/a Turanga Ararau Private Training Establishment [2012] NZERA Auckland 252;Vector Gas v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444;Young v Venables t/a Mt Eden Bakery & Delicatessen EmpC Auckland AC88/00, 7 November 2000 |
| Number of Pages | 21 |
| PDF File Link: | 2015_NZERA_Auckland_201.pdf [pdf 242 KB] |