| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 162 |
| Hearing date | 26-Apr-17 |
| Determination date | 06 June 2017 |
| Member | A Fitzgibbon |
| Representation | G Finnigan ; M Moncur |
| Location | Auckland |
| Parties | Irwin v AUNZ Investment Group Ltd and Anor |
| Other Parties | Yu |
| Summary | UNJUSTIFIED DISMISSAL - Constructive Dismissal - Applicant claimed unjustifiably dismissed by respondent - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - PENALTY - Applicant sought penalty against first respondent for breaching employment agreement and against second respondent director for aiding and abetting breach - RECOVERY OF MONIES - Applicant sought recovery of business expenses |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Applicant requested outstanding salary to be paid on number of occasions. Failure to pay salary fundamental breach of employment agreement. Applicant put first respondent on notice that further failures would result in his resignation. Resignation amounted to constructive dismissal. No evidence of warning about performance. No evidence applicant responsible for business’ losses. Dismissal unjustified. REMEDIES: No contributory conduct. First respondent to pay applicant $20,425 reimbursement of lost wages. $7,500 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: First respondent failed to pay agreed remuneration. First respondent to pay applicant $29,888 (gross) and $18,109 (net) arrears of wages and $12,012 arrears of holiday pay.;RECOVERY OF MONIES: Expenses were business-related and GST invoices were provided. First respondent to pay applicant $5,689 recovery of monies.;PENALTY: First respondent breached employment agreement by failing to pay agreed remuneration, holiday pay and business expenses. First respondent failed to keep wage and time records. Breaches deliberate and sustained. Deterrent necessary. $3,000 penalty against first respondent appropriate. Second respondent sole director and ‘controlling mind and brains’ of first respondent. Second respondent made decision to delay and withhold agreed remuneration. Breach deliberate. $1,000 penalty against second respondent appropriate. |
| Result | Applications granted ; Reimbursement of lost wages ($20,425) ; Compensation for humiliation etc ($7,500) ; Arrears of wages ($29,888.97)(gross) ($18,109.59)(net) ; Arrears of holiday pay ($12,012) ; Recovery of monies ($5,689.38) ; Penalty ($3,000)(first respondent)(payable to crown) ($1,000)(second respondent)(payable to crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s65 ; ERA s75 ; ERA s128(2) ; ERA s128(3) ; ERA s130 ; ERA s134 ; ERA s135(2) ; ERA s136 ; ERA s174E ; Holidays Act 2003 ; Wages Protection Act 1983 |
| Cases Cited | Borsboom v Preet PVT Ltd [2016] NZEmpC 143, (2016) 10 NZELC 79-072;Giddens v Phelan ERA Auckland AA466/05, 7 December 2005;Irwin v AUNZ Investment Group Ltd [2017] NZERA Auckland 126;Tan v Yang [2014] NZEmpC 65, [2014] ERNZ 733 |
| Number of Pages | 17 |
| PDF File Link: | 2017_NZERA_Auckland_162.pdf [pdf 270 KB] |