| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2016] NZERA Christchurch 70 |
| Hearing date | 31 Mar & 22 Apr 2016 (2 days) |
| Determination date | 26 May 2016 |
| Member | David Appleton |
| Representation | K Murray ; L Acland |
| Location | Nelson |
| Parties | Oliver v Star Moving Ltd & Anor |
| Other Parties | Scott Haulage 2010 Ltd |
| Summary | PRACTICE AND PROCEDURE - Identity of employer - Whether applicant employed by first respondent or second respondent - UNJUSTIFIED DISADVANTAGE - UNJUSTFIED DISMISSAL - Constructive Dismissal - Applicant claimed unjustifiably disadvantaged by demotion and second respondent unilaterally stopping overnight payments - Applicant claimed unjustifiably dismissed by second respondent - Whether applicant entitled to overnight allowance payments - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - PENALTY - Applicant sought penalty against respondent for breach of good faith - Branch operations manager |
| Abstract | AUTHORITY FOUND -;PRACTICE AND PROCEDURE: Applicant’s allegation that employment agreement with second respondent was forgery not proven to high standard required. Applicant employed by second respondent.;UNJUSTIFIED DISADVANTAGE - UNJUSTFIED DISMISSAL: Second respondent previously agreed to provide applicant overnight allowance payments. Applicant unjustifiably disadvantaged by demotion and second respondent unilaterally stopping overnight payments. Second respondent breached employment agreement (EA) by unilaterally stopping overnight payments. Second respondent breached EA and Wages Protection Act 1983 by deducting amounts from applicant’s wages to recover alleged overpayments. Breaches amounted to repudiation of EA. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Second respondent to pay applicant $2,823 reimbursement of lost wages. $20,000 compensation appropriate. Interest payable.;ARREARS OF WAGES AND HOLIDAY PAY: Second respondent to pay applicant $1,600 arrears of wages and $619 arrears of holiday pay. Interest payable.;PENALTY - GOOD FAITH: Second respondent’s failure to consult over purported overpayments and subsequent deductions was deliberate and sustained breach of good faith. $5,000 penalty appropriate. |
| Result | Applications granted ; Reimbursement of lost wages ($2,823.90) ; Compensation for humiliation etc ($20,000) ; Arrears of wages ($1,600) ; Arrears of holiday pay ($619.88) ; Interest payable (5%) ; Penalty ($5,000)(payable to applicant) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 - ERA s4A - ERA s103A - ERA s124 - ERA s128 - ERA Second Schedule cl11 - Holidays Act 2003 s14(a)(ii) - Holidays Act 2003 s28 - Judicature Act 1908 s87(3) - Wages Protection Act 1983 s4 - Wages Protection Act 1983 s5 - Wages Protection Act 1983 s5(1A) |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union Of Workers (Inc) 1994] 2 NZLR 415 (CA);Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA);Cantor Fitzgerald International v Callaghan [1999] ICR 639, [1999] 2 All ER 411 (EWCA);Premier Events Group Ltd v Beattie [2014] NZEmpC 231, [2014] ERNZ 360;Roy v Board of Trustees of Tamaki College [2016] NZEmpC 20;WE Cox Toner (International) Ltd v Crook [1981] ICR 823 (EAT) |
| Number of Pages | 28 |
| PDF File Link: | 2016_NZERA_Christchurch_70.pdf [pdf 405 KB] |