| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 324 |
| Hearing date | 22-Sep-16 |
| Determination date | 22 September 2016 |
| Member | R Larmer |
| Representation | M Bhamji (in person) ; no appearance |
| Location | Auckland |
| Parties | Bhamji v Global Cover Insurance Ltd |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY– Applicant sought arrears of wages, holiday pay and KiwiSaver - UNJUSTIFIED DISMISSAL – Constructive Dismissal - Applicant claimed unjustifiably dismissed by respondent – PENALTY – GOOD FAITH – Applicant sought penalty for respondent’s breach of good faith, breach of employment agreement, failure to pay holiday pay on termination of employment and failure to pay wages without deduction - (“EA”) – No appearance for respondent – Insurance broker – COSTS – Applicant sought contribution to costs |
| Abstract | AUTHORITY FOUND –ARREARS OF WAGES AND HOLIDAY PAY: Respondent underpaid applicant and failed to remit KiwiSaver contributions to IRD. Applicant did not take annual leave during employment but did not receive holiday pay on termination of employment. Respondent to pay applicant $26,622 arrears of wages, holiday pay and KiwiSaver contributions. Respondent ordered to remit $21,751.90 PAYE to IRD. Interest payable.UNJUSTIFIED DISMISSAL: Respondent failed to pay applicant, took steps to remove tools of trade and required applicant to relinquish access to computer systems. Respondent’s actions fundamental breaches of obligations as employer. Breaches serious enough that resignation reasonably foreseeable. Respondent did not provide applicant with all relevant information adverse to continuation of employment. Respondent failed to meet procedural fairness requirements. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $14,261 reimbursement of lost wages. $10,000 compensation appropriate. Interest payable.PENALTY – GOOD FAITH: Respondent did breach good faith and EA but breaches recognised in grievance remedies. Respondent failed to pay holiday pay on termination of employment and wages without deduction. Need for deterrence. $4,000 penalty appropriate.COSTS: 5 hour investigation meeting. Appropriate to apply notional daily tariff. Respondent to pay applicant $2,500 contribution to costs. |
| Result | Applications granted ; Arrears of wages, holiday pay and KiwiSaver contributions ($26,622.42) ; Reimbursement of lost wages ($14,261.53) ; Compensation for humiliation etc. ($10,000) ; Penalty ($2,000)(payable to applicant)($2,000)(payable to Crown) ; Interest (5%) ; Costs in favour of applicant ($2,500) ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A) ; ERA s103A ; ERA s103A(3) ; ERA s124 ; Holidays Act 2003 s24 ; Wages Protection Act 1983 |
| Number of Pages | 15 |
| PDF File Link: | 2016_NZERA_Auckland_324.pdf [pdf 255 KB] |