| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2016] NZERA Christchurch 143 |
| Hearing date | 8 & 9 Mar & 18 Aug 2016 (3 days) |
| Determination date | 25 August 2016 |
| Member | David Appleton |
| Representation | A Sharma ; K Murray, S Boyce |
| Location | Nelson |
| Parties | Tillaart v MBS (2008) Ltd t/a Nelson Beauty Therapy & Ors |
| Other Parties | MBS (2008) Ltd t/a Nelson Beauty Therapy v Tillaart |
| Summary | PRACTICE AND PROCEDURE – Whether applicant able to pursue constructive dismissal claim – RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days - UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by heavy workload, failure to pay wages on time, having to deal with complaints, lack of stock to work with, expectation that applicant undertake reception duties issue and concerns about payment in cash - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay – Deductions from wages - PENALTY – Applicant sought penalties for respondent’s breach of employment agreement (“EA”) and failure to pay holiday pay - COUNTERCLAIM – BREACH OF CONTRACT- Respondent alleged applicant breached duty of fidelity by claiming commission not entitled to, stealing stock and deliberately seeking to damage respondent’s business – Respondent claimed applicant breached confidentiality, non-solicitation and interference with suppliers clauses - Beauty therapist |
| Abstract | AUTHORITY FOUND –PRACTICE AND PROCEDURE: Applicant’s representative expressly disavowed constructive dismissal claim at start of investigation meeting. Authority and respondent did not have chance to investigate issue. Claim disallowed. Application dismissed.RAISING PERSONAL GRIEVANCE: No evidence that grievance about pay rise raised at time of original complaint or at any other time. Grievance not raised within 90 days. Other issues likely to have been on-going, so each action had occurred or re-occurred within 90 days of applicant making complaint. Other grievances raised within 90 days.UNJUSTIFIED DISADVANTAGE: Applicant’s workload not sustainable in long term. Applicant complained more than once about workload. Applicant did not acquiesce to workload. Fair and reasonable employer could not have failed to implement system to protect applicant from effect of sustained overwork. Applicant unjustifiably disadvantaged. Respondent frequently made payments late, in breach of EA. Applicant unjustifiably disadvantaged. Applicant's job in part to deal with complaints. On balance of probabilities, respondent acted as fair and reasonable employer concerning lack of stock and customer complaints. No disadvantage. Undertaking reception duties part of applicant’s everyday role. No disadvantage. Respondent paid applicant’s commission in cash. EA required respondent to make payment into applicant’s bank account. Applicant unjustifiably disadvantaged. REMEDIES: No contributory conduct. $15,000 compensation appropriate.ARREARS OF WAGES AND HOLIDAY PAY: EA allowed respondent to pay applicant in lieu of notice and did not guarantee any minimum hours of work. Applicant not owed wages for notice period. EA did not give respondent express right to deduct training costs from holiday pay. Respondent to pay applicant arrears of holiday pay, quantum to be determined.PENALTY: Respondent breached contractual obligation to pay applicant's wages into bank account. Respondent routinely changed rosters without giving required notice, causing applicant disruption. Respondent failed to conduct performance reviews in accordance with EA. Respondent did not set employee objectives on annual basis. Respondent did not provide job description. Need for deterrence. Breaches not wilful. $4,000 penalty appropriate. Unacceptable for respondent to withhold holiday pay without calculating amount actually owed by applicant. Respondent never satisfactorily explained basis of withholdings. $2,000 penalty appropriate.COUNTERCLAIM – BREACH OF CONTRACT: On balance of probabilities, innocent explanations for discrepancies alleged by respondent. Insufficient evidence presented by respondent. No breach of duty of fidelity. Applicant only had one conversation with third party about respondent’s financial situation. No evidence that applicant told third party anything third party not entitled to know. Merely placing advertisement in widely circulated newspaper not solicitation. No evidence applicant directly targeted respondent’s customers. No evidence that applicant interfered in relationship between respondent and third party in any way. No breach of EA. |
| Result | Applications granted (unjustified disadvantage)(penalty) ; Compensation for humiliation etc ($15,000) ; Penalty ($2,000)(payable to applicant)($4,000)(payable to Crown) ; Applications partially granted (arrears of wages and holiday pay)(raising personal grievance) ; Arrears of holiday pay (quantum to be determined) ; Applications dismissed (practice and procedure)(counterclaim – breach of contract) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A ; ERA s114 ; ERA s114(1) ; ERA s114(2) ; ERA s134 ; ERA Second Schedule cl11 ; Holidays Act 2003 s6 ; Holidays Act 2003 s75 ; Holidays Act 2003 s84 ; Holidays Act 2003 s86 ; Wages Protection Act 1983 s5 ; Evidence Act 2006 s60 |
| Cases Cited | Ale v Kids at Home Ltd [2015] NZEmpC 209 ; Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA) ; Baldwins (Ashby) Ltd v Maidstone [2011] EWHC B12 (QB) ; Creedy v Commissioner of Police [2006] ERNZ 517 (EmpC) ; Equico Equipment Finance Ltd v Enright ERA Auckland AA241/09, 17 July 2009 ; Tan v Yang [2014] NZEmpC 65, [2014] ERNZ 733 ; Xu v McIntosh [2004] 2 ERNZ 448 (EmpC) |
| Number of Pages | 49 |
| PDF File Link: | 2016_NZERA_Christchurch_143.pdf [pdf 462 KB] |