| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 207 |
| Hearing date | 17 Jul 2015 |
| Determination date | 17 July 2015 |
| Member | E Robinson |
| Representation | G Bennett ; S Michaels |
| Location | Auckland |
| Parties | Bennett and Ors v Michaels and Ors |
| Other Parties | Zainol, Van Geems, Corporate International Ltd, Corporate Cleaning Services Ltd, Corporate Protection and Security International Ltd |
| Summary | PRACTICE AND PROCEDURE - Identity of employer - Whether applicants employed by first respondent - First respondent director of second and fourth respondent - Whether second, third and fourth respondents shell companies - Lifting corporate veil - RAISING PERSONAL GRIEVANCE - Whether grievances raised within 90 days - ARREARS OF WAGES - First and second applicants sought arrears of wages from fourth respondent - Third applicant sought arrears of wages from second respondent - PENALTY - GOOD FAITH - Applicants sought penalty for second and fourth respondent’s breach of employment agreements and breach of good faith obligations - Applicants sought penalty for first respondent aiding and abetting second and fourth respondent’s breach of employment agreements and breach of good faith obligations |
| Abstract | AUTHORITY FOUND -;PRACTICE AND PROCEDURE: Fact companies not profitable not a per se reason for lifting corporate veil. Second, third and fourth respondents were registered companies and provided trade and services for clients. Not appropriate to lift corporate veil.;RAISING PERSONAL GRIEVANCE: No evidence applicants raised personal grievances. Grievances not raised within 90 days.;ARREARS OF WAGES: Appropriate to accept applicants’ claim in absence of wage or time records. Fourth respondent to pay first applicant $7,268 arrears of wages. Fourth respondent to pay second applicant $11,652 arrears of wages. Second respondent to pay third applicant $6,666 arrears of wages. Interest payable on all.;PENALTY - GOOD FAITH: Second and fourth respondents breached applicant's respective EAs by non-payment of wages. Second and fourth respondents breached good faith by misleading applicants into believing that they would be remunerated in accordance with respective EAs. Authority considered awarding penalties against first respondent personally for aiding and abetting breaches of applicant’s employment agreements. Authority considered imposing penalty against first respondent for breach of good faith as “mind” of second and fourth respondents. Penalty claims against first respondent only raised at investigation meeting so leave reserved for both parties to make submissions. |
| Result | Application granted (arrears of wages); Arrears of wages ($7,268.90)(first applicant)($11,652.90)(second applicant)($6,666)(third applicant) ; Interest (5%) ; Applications dismissed (practice and procedure)(raising personal grievance) ; Application reserved (penalty) ; Disbursements in favour of applicants ($71.56)(filing fee) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s4;ERA s4(1)(b)(i);ERA s134(1);ERA s157(1);ERA Second Schedule c 11;Fair Trading Act 1986;Judicature Act 1908;Judicature (Prescribed Rate of Interest) Order 2011;Wages Protection Act 1983;Wages Protection Act 1983 s4 |
| Number of Pages | 8 |
| PDF File Link: | 2015_NZERA_Auckland_207.pdf [pdf 111 KB] |