| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 1 |
| Hearing date | 2 and 3 Aug 2016 (2 days) |
| Determination date | 04 January 2017 |
| Member | A Dallas |
| Representation | D Organ ; A Drake, H Cleaver |
| Location | Auckland |
| Parties | Bosman v Total Access Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by respondent’s actions- Applicant claimed unjustifiably dismissed by respondent – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Deductions from wages - PENALTY – GOOD FAITH – Applicant sought penalty for respondent’s breach of good faith, failure to pay holiday pay on termination of employment and unlawful deductions from wages – COUNTERCLAIM – BREACH OF CONTRACT – Respondent sought damages for applicant’s breach of employment agreement (“EA”) –COUNTERCLAIM – PENALTY – Respondent sought penalty for applicant’s breach of EA - Business development manager |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Respondent did not pursue course of conduct with intention of causing applicant to resign. Respondent did not send applicant away. Respondent tried to convince applicant to return to work after resignation. Applicant resigned of own volition. No dismissal. Claim of unjustified disadvantage arose out of same essential facts. No unjustified disadvantage.ARREARS OF WAGES AND HOLIDAY PAY : Respondent did not pay applicant holiday pay on termination of employment but failure later rectified. Respondent made deductions from applicant’s wages without consent. Respondent to pay applicant $550 arrears of wages.PENALTY – GOOD FAITH: No breach of good faith. Respondent breached important workplace entitlement by failing to pay holiday pay. Respondent aware that applicant did not consent to deductions. Breaches continued for some months. No direct evidence of respondent’s ability to pay. $4000 penalty appropriate.COUNTERCLAIM – BREACH OF CONTRACT: Applicant did remove some information from respondent’s servers, but wanted material to assist with demonstrating what had gone wrong during employment with respondent. No damages.COUNTERCLAIM – PENALTY: No breach of EA. No penalty. |
| Result | Applications partially granted (arrears of wages and holiday pay)(penalty – good faith) ; Arrears of wages ($550) ; Penalty ($4,000)(payable to applicant) ; Applications dismissed (unjustified disadvantage)(unjustified dismissal)(counterclaim – breach of contract)(counterclaim – penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1)(a) ; ERA s4(1)(b) ; ERA s103A ; ERA s124 ; ERA s136(2) ; ERA s174C(3)(b) ; ERA s174C(4) ; ERA Second Schedule cl11 ; Holidays Act 2003 s16 ; Holidays Act 2003 s27(1)(b) ; Holidays Act 2003 s27(2) ; Judicature Act 1908 s87(3) ; Wages Protection Act 1983 s4 ; Wages Protection Act 1983 s5 ; Wages Protection Act 1983 s11(2) |
| 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) ; Borsboom v Preet Pvt Ltd [2016] NZEmpC 143 ; Bosman v Total Access Ltd [2016] NZERA Auckland 58 ; Fagotti v Acme Ltd [2015] NZEmpC 135 ; George v Auckland Council [2013] NZEmpC 179, [2013] ERNZ 675 ; PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC) ; Wellington, Taranaki and Marlborough Clerical Administration and Related Workers IUOW v Greenwich t/a Becket Employment [1983] ACJ 965 (AC) |
| Number of Pages | 28 |
| PDF File Link: | 2017_NZERA_Auckland_1_amended.pdf [pdf 332 KB] |