| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2017] NZERA Wellington 41 |
| Hearing date | 14-Mar-17 |
| Determination date | 24 May 2017 |
| Member | T MacKinnon |
| Representation | P Southwell, C Bruce ; M He |
| Location | Palmerston North |
| Parties | Van der Lee v Bella Vita Day Spa Ltd |
| Summary | PRACTICE AND PROCEDURE - Whether applicant permanent part time or casual employee - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages, KiwiSaver and holiday pay - PENALTY -Applicant sought penalty for respondent’s breaches of her employment agreement - UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by bullying and sexual harassment - Beauty Therapist |
| Abstract | AUTHORITY FOUND -;PRACTICE AND PROCEDURE: Employment agreement did not meet requirements for fixed term employment. Respondent could not unilaterally change arrangement from part time to casual. Applicant was permanent part time employee.;ARREARS OF WAGES AND HOLIDAY PAY: Authority had no confidence in accuracy of respondent’s records. Applicant’s records accepted as accurate. Remuneration received did not meet hours worked. Payments by voucher were unlawful. Applicant’s employment did not fall into situation where holiday pay could be paid as part of her hourly rate. Annual holiday pay was not identifiable component of applicant’s pay. Respondent to pay applicant $4,469 arrears of wages, $867 arrears of holiday pay and arrears of KiwiSaver, quantum to be determined.;PENALTY: Respondent breached contractual duty to act in good faith in respect of inaccurate timesheets and failure to pay all remuneration due. Breach serious, deliberate and sustained over several months. Applicant adversely affected and constantly anxious about money. Respondent small business operating on slim margins. $5,000 penalty appropriate.;UNJUSTIFIED DISADVANTAGE: Meetings over applicant’s performance were informal rather than disciplinary in nature for purpose of guidance. Director’s direct tone in email not bullying. Client alleged of sexual harassment did not have formal role at respondent and was not representative of respondent. Applicant did not raise concerns about client’s behaviour with manager. Respondent had no opportunity to address applicant’s concerns over client. No unjustified disadvantage. |
| Result | Applications granted (penalty)(arrears of wages and holiday pay) ; Penalty ($2,500)(Crown)($2,500)(applicant) ; Arrears of wages ($4,469.36) ; Arrears of holiday pay ($867.53) ; Arrears of KiwiSaver (quantum to be determined) ; Application dismissed (unjustified disadvantage) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s3 ; ERA s66 ; ERA s108(1) ; ERA s108(2) ; ERA s117 ; ERA s133 ; ERA s133A ; ERA s134 ; Holidays Act 2003 s28 ; Holidays Act 2003 s28(1)(c) ; Wages Protection Act 1983 s4 ; Wages Protection Act 1983 s7 |
| Cases Cited | Borsboom v Preet PVT Ltd [2016] NZEmpC 143, (2016) 10 NZELC 79-072;Grant v Superstrike Bowling Centres Ltd [1992] 1 ERNZ 727 (LC);Lumsden v Skycity Management Ltd [2017] NZEmpC 30, (2017) 14 NZELR 546;Varney v Tasman Regional Sports Trust EmpC Christchurch CC15/04, 23 July 2004 |
| Number of Pages | 19 |
| PDF File Link: | 2017_NZERA_Wellington_41.pdf [pdf 159 KB] |