| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 24 |
| Hearing date | 30 Nov - 03 Dec 2015 (4 days) |
| Determination date | 21 January 2016 |
| Member | Rachel Larmer |
| Representation | T Oldfield ; P Templeton |
| Location | Auckland |
| Parties | Brennan v AFOS Ltd and Ors |
| Other Parties | A Sharpe, R Sharpe |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by first respondent’s failure to provide final pay – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Interpretation of commission payment clause – Whether deductions from wages – RECOVERY OF MONIES – Applicant sought recovery of business expenses – PENALTY – Applicant sought penalty against first respondent for breaches of employment agreement (“EA”), failure to pay holiday entitlement and failure to provide wage and time records – Applicant sought penalty against second and third respondents for inciting, aiding and abetting breaches by first respondent – Manager |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE: Applicant unjustifiably disadvantaged by respondent’s failure to provide final pay. Respondent did not act as fair and reasonable employer in circumstances. REMEDIES: No contributory conduct. $4,000 compensation for humiliation etc appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Determined which clients ‘new’ and which ‘existing’. First respondent unilaterally varied applicant’s contractual commission arrangements. Parties’ additional oral commission agreement discretionary, no obligation to pay. First respondent unlawfully deducted applicant’s wages. First respondent to pay applicant arrears of wages and holiday pay, quantum to be determined.;PENALTY: First respondent breached Holidays Act 2003. First respondent breached applicant’s EA by failure to pay full commission entitlements, holiday leave entitlements, and unlawful deductions. First respondent failed to provide wage and time records. First respondent’s actions flagrant, deliberate, longstanding. Deterrence needed. Breaches serious, applicant unable to fully recover money owed. $20,000 penalty appropriate. Second and third respondents jointly and equally liable as directors of first respondent. $10,000 penalty appropriate. Interest payable. |
| Result | Applications granted ; Arrears of wages and holiday pay (quantum to be determined) ; Recovery of monies (quantum to be determined) ; Penalty ($5,000)(first respondent)(payable to Crown)($15,000)(first respondent)(payable to applicant)($5,000)(second respondent)(payable to applicant)($5,000)(third respondent)(payable to applicant) ; Compensation for humiliation etc ($4,000) ; Interest (5%) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s103A;ERA s103A(2);ERA s103A(3);ERA s123(1)(c)(i);ERA s124;ERA s130(2);ERA s134(2);ERA Second Schedule cl11;Holidays Act 2003 s14(a)(iv);Judicature Act 1908;Wages Protection Act 1983 |
| Cases Cited | Xu v McIntosh [2004] 2 ERNZ 448 (EmpC) |
| Number of Pages | 26 |
| PDF File Link: | 2016_NZERA_Auckland_24.pdf [pdf 308 KB] |