| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 293 |
| Hearing date | 15-Jun-16 |
| Determination date | 30 August 2016 |
| Member | Vicki Campbell |
| Representation | T Oldfield ; S Langton |
| Location | Auckland |
| Parties | Nath v Advance International Cleaning Systems NZ Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Dismissal - Applicant claimed unjustifiably disadvantaged by failure to deliver share scheme, failure to provide tax free benefit and change of mind about whether applicant had job – Applicant claimed unjustifiably dismissed by respondent – GOOD FAITH – Applicant sought declaration that respondent breached good faith by failure to deliver share scheme, failure to provide tax free benefit and encouraging applicant to purchase shares in third party company – BREACH OF CONTRACT – Applicant claimed respondent had breached terms of employment agreement (“EA”) by failure to deliver on promised share scheme and tax free benefit - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages – COUNTERCLAIM – RECOVERY OF MONIES – Respondent sought recovery of payments made to cover leave in advance – National development manager |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Parties never came to agreement over share scheme. Tax free benefit contingent on applicant taking holiday, which applicant did not do. Respondent’s actions in proposing to wait until applicant fully fit to return to work before confirming new role action fair and reasonable employer could take. No unjustified disadvantage. Employment did not terminate due to redundancy. Respondent proposed giving applicant notice that job could not be kept open but did not terminate employment. Respondent sought to keep applicant in employment. No dismissal.GOOD FAITH: Respondent did not intend to mislead or deceive applicant in respect of intention to pursue share scheme or provide tax free benefit. Offer for applicant to purchase shares in third party company not employment relationship problem. No breach of good faith.BREACH OF CONTRACT: Offer of share scheme not term of employment. Offer of tax free benefit term of employment but respondent did not breach term. No breach of EA.ARREARS OF WAGES AND HOLIDAY PAY: Applicant not dismissed from employment so respondent could not have failed to pay notice. No arrears.COUNTERCLAIM – RECOVERY OF MONIES: Agreement regarding advance of money agreement between applicant and respondent’s director personally. Agreement not employment relationship problem.No recovery of monies. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 ; ERA s103A ; ERA s103A(3) ; ERA s174E ; Fair Trading Act 1986 |
| Cases Cited | JP Morgan Chase Bank NA v Lewis [2015] NZCA 255, [2015] 3 NZLR 618 ; Motor Machinists Ltd v Craig [1996] 2 ERNZ 585 (EmpC) ; New Zealand Cards Ltd v Ramsay [2012] NZEmpC 51 ; Wellington, Taranaki and Marlborough Clerical Administration and Related Workers IUOW v Greenwich t/a Becket Employment [1983] ACJ 965 (AC) |
| Number of Pages | 20 |
| PDF File Link: | 2016_NZERA_Auckland_293.pdf [pdf 232 KB] |