| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 268 |
| Hearing date | 13 Apr & 23 June 16 |
| Determination date | 09 August 2016 |
| Member | Vicki Campbell |
| Representation | M Moncur; Y Singh |
| Location | Auckland |
| Parties | Bhatti v Aotearoa Smart Buy NZ Ltd & Anor |
| Other Parties | Surender Kumar |
| Summary | RAISING PERSONAL GRIEVANCE – Applicant sought to raise grievances out of time – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Premium for employment – BREACH OF CONTRACT – Applicant claimed respondent failed to provide safe work environment – PENALTY – GOOD FAITH – Applicant sought penalty for first respondent’s breaches of employment agreement and good faith – Applicant sought penalty for second respondent’s aiding and abetting breaches – COUNTERCLAIM – RECOVERY OF MONIES – Second respondent sought recovery of loan paid to applicant – Business manager RAISING PERSONAL GRIEVANCE – Applicant sought to raise grievances out of time – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Premium for employment – BREACH OF CONTRACT – Applicant claimed respondent failed to provide safe work environment – PENALTY – GOOD FAITH – Applicant sought penalty for first respondent’s breaches of employment agreement and good faith – Applicant sought penalty for second respondent’s aiding and abetting breaches – COUNTERCLAIM – RECOVERY OF MONIES – Second respondent sought recovery of loan paid to applicant – Business manager |
| Abstract | AUTHORITY FOUND -;RAISING PERSONAL GRIEVANCE: Applicant sought legal advice within 90 days but did not give instructions to raise grievance. No exceptional circumstances. Leave to raise grievances out of time declined.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant’s evidence about hours worked inconsistent with arrears claim. No arrears of wages. Respondent failed to provide adequate wage and holiday records. Applicant entitled to receive pay for public holidays worked. Insufficient evidence to establish applicant paid premiums. First respondent to pay applicant $1,654 arrears of holiday pay.;BREACH OF CONTRACT: Applicant provided no evidence of medical conditions related to working hours. No breach of implied obligation to provide healthy and safe work environment.;PENALTY – GOOD FAITH: Applicant’s claims relating to exploitation and disadvantage not established. No breach of good faith. First respondent’s failure to pay holiday pay breach of statutory requirements. Breach sustained over period of employment. Applicant vulnerable employee. First respondent showed no remorse, breach deliberate. $1,000 penalty appropriate. Second respondent aided and abetted breaches but was absent overseas. No penalty.;COUNTERCLAIM – RECOVERY OF MONIES: No employment relationship between second respondent and applicant. No jurisdiction to investigate claim. No recovery of monies. |
| Result | Applications granted (arrears of holiday pay)(penalty) ; Arrears of holiday pay ($1,654.80)(first respondent) ; Penalty ($1,000)(payable to Crown)(first respondent) ; Applications dismissed (raising personal grievance)(arrears of wages)(penalty – good faith)(counterclaim – recovery of monies) ; Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA s4A(e);ERA s114;ERA s115;ERA s115(1)(a);ERA s131;ERA s134(2);ERA s174E;ERA s196;Wages Protection Act 1983 s12A;Wages Protection Act 1983 s12A(1) |
| Cases Cited | JP Morgan Chase Bank NA v Lewis [2015] NZCA 255, [2015] 3 NZLR 618;Sears v Attorney-General [1994] 2 ERNZ 39 (EmpC);Tan v Yang [2014] NZEmpC 65, [2014] ERNZ 733 |
| Number of Pages | 17 |
| PDF File Link: | 2016_NZERA_Auckland_268.pdf [pdf 246 KB] |