| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2017] NZERA Christchurch 1 |
| Hearing date | 13 and 14 Dec 2016 (2 days) |
| Determination date | 04 January 2017 |
| Member | D Appleton |
| Representation | J Stephenson ; T Stallard |
| Location | Nelson |
| Parties | Gillette v Sunpower Ltd |
| Summary | JURISDICTION – Whether applicant employee or director of respondent – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – RECOVERY OF MONIES – Applicant sought recovery of work-related expenses - UNJUSTIFIED DISMISSAL – Dismissal - Applicant claimed unjustifiably dismissed by respondent – Summary dismissal - PENALTY – GOOD FAITH – Applicant sought penalty for respondent’s breach of good faith and breach of employment agreement (“EA”) – Sales representative |
| Abstract | AUTHORITY FOUND –JURISDICTION: Order for non-publication of identifying details of respondent’s clients and prospective clients. Applicant signed agreement before starting work. Inherently unlikely that applicant would have agreed to defer start of employment while on work visa requiring him to be employed by respondent. EA not terminated when applicant became deemed director. Employment continued under terms of conditions contained in EA. No significant divergence from terms and conditions in practice. Previous negotiations indicated parties intended relationship to be one of employment. Applicant worked closely under control of main shareholder of respondent. Applicant integrated into respondent in capacity as shareholder but also employee. Applicant employed by respondent.ARREARS OF WAGES AND HOLIDAY PAY: Respondent underpaid applicant according to EA and did not pay applicant annual holiday pay for leave not taken. Applicant entitled under EA to monthly bonus that applicant did not receive during employment. Respondent to pay applicant $27,243 arrears of wages and $929 arrears of holiday pay. Interest payable.RECOVERY OF MONIES: Applicant not entitled to claim monies related to car loan as car not owned by respondent. Applicant entitled to reimbursement of other elements of claim related to work expenses. Respondent to pay applicant $740 recovery of monies.UNJUSTIFIED DISMISSAL: Applicant sent away by respondent. Procedural fairness requirements not met. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $15,000 reimbursement of lost wages. $7,000 compensation appropriate.PENALTY – GOOD FAITH: Respondent breached EA by failing to pay applicant wages. Respondent misled and deceived applicant by telling applicant could not afford to pay him. Breach deliberate, serious and sustained. Two breaches for penalty purposes. Both breaches serious. No mitigating factors. Little evidence about respondent’s ability to pay. $10,000 penalty appropriate. |
| Result | Applications granted ; Arrears of wages ($27,243.96) ; Interest (5%) ; Arrears of holiday pay ($929.67) ; Recovery of monies ($740.06) ; Reimbursement of lost wages ($15,000) ; Compensation for humiliation etc ($7,000) ; Penalty ($10,000)(payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1) ; ERA s6 ; ERA s6(1)(a) ; ERA s66 ; ERA s103A ; ERA s124 ; ERA s128 ; ERA s134 ;ERA Second Schedule cl11 ; Evidence Act 2006 s60 ; Holidays Act 2003 s23 ; Immigration Act 2009 |
| Cases Cited | Borsboom v Preet Pvt Ltd [2016] NZEmpC 143 ; Bryson v Three Foot Six Ltd (No 2) [2005] NZSC 34, [2005] 3 NZLR 721 ; Smith v Practical Plastics Ltd [1998] 1 ERNZ 323 (EmpC) |
| Number of Pages | 28 |
| PDF File Link: | 2017_NZERA_Christchurch_1.pdf [pdf 283 KB] |