| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2016] NZERA Wellington 8 |
| Hearing date | 18 - 20 Mar 2015 (3 days) |
| Determination date | 18 January 2016 |
| Member | Trish MacKinnon |
| Representation | JA Burney ; S Hornsby-Geluk |
| Location | Masterton |
| Parties | Lowe and Anor v Waimapu Station Partnership |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Constructive Dismissal - First applicant claimed unjustifiably disadvantaged by respondent’s refusal to pay monthly wages - First applicant claimed constructively dismissed by respondent - BREACH OF CONTRACT - Applicant sought payment of respondent’s oral offer of percentage value of business - ARREARS OF WAGES AND HOLIDAY PAY - Applicants sought arrears of wages and holiday pay - RECOVERY OF MONIES - First applicant sought reimbursement for private vehicle use - PENALTY - First applicant sought penalty for respondent’s failure to provide employment agreement - COUNTERCLAIM - BREACH OF CONTRACT - Unjust enrichment - Respondent sought damages for loss incurred as result of applicant’s unauthorised salary and bonus payments - COUNTERCLAIM - RECOVERY OF MONIES - Respondent sought reimbursement of equipment hire and purchases - COUNTERCLAIM - PENALTY - GOOD FAITH - Respondent sought penalty for first applicant’s breach of good faith - Farm manager |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Dismissal claim subsumed unjustified disadvantage claim. No unjustified disadvantage. Respondent’s unilateral salary reduction breached significant term of unwritten employment agreement. First applicant constructively dismissed. Dismissal unjustified. REMEDIES: 30 per cent contributory conduct. $12,600 compensation for humiliation etc appropriate.;BREACH OF CONTRACT: Respondent had no obligation to pay first applicant percentage value of business. No breach of contract.;ARREARS OF WAGES AND HOLIDAY PAY: Second applicant’s arrears claim joined to first applicant’s claim. Respondent to pay first applicant $4,539 arrears of wages and $10,500 arrears of holiday pay. Respondent to pay second applicant $1,728 arrears of holiday pay.;RECOVERY OF MONIES: No merit in first applicant’s claim for compensation for private vehicle usage. No recovery of monies.;PENALTY: No evidence of misleading or deceiving conduct by respondent. No penalty.;COUNTERCLAIM – BREACH OF CONTRACT: First applicant not unjustly enriched by self-authorised salary increases. Respondent suffered monetary deprivation from applicant’s bonus payments without notification. Applicant unjustly enriched by self-authorised bonus payments. Award of special damages justified. First applicant to pay respondent $26,325 special damages.;COUNTERCLAIM – PENALTY – BREACH OF GOOD FAITH: Both parties breached good faith duties by failing to be responsive and communicative. No penalty.;COUNTERCLAIM – RECOVERY OF MONIES: Equipment usage invoiced by third party, not applicant. No jurisdiction to award remedies. No recovery of monies. |
| Result | Applications granted (unjustified dismissal)(arrears of wages and holiday pay)(counterclaim – breach of contract) ; Contributory conduct (30%) ; Arrears of wages ($4,539) ; Arrears of holiday pay ($10,500)(first applicant)($1,728)(second applicant) ; Compensation for humiliation etc ($12,600) ; Damages ($26,325) ; Applications dismissed (breach of contract)(recovery of monies)(penalty)(counterclaim – recovery of monies)(counterclaim – penalty – good faith); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s221;Holidays Act 2003 s28;Holidays Act 2003 s66(2);Holidays Act 2003 s66(3);Holidays Act 2003 s81;Annual Holidays Act 1944 s10;Judicature Amendment Act 1908 s94B;Wages Protection Act 1983 |
| Cases Cited | Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA), (1985) ERNZ Sel Cas 136;Rainbow Falls Organic Farm Ltd v Rockell [2014] NZEmpC 136, [2014] ERNZ 275;New Zealand Fire Service Commission v Warner [2010] NZEmpC 90, [2010] ERNZ 290 |
| Number of Pages | 47 |
| PDF File Link: | 2016_NZERA_Wellington_8.pdf [pdf 377 KB] |