| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 188/05 |
| Hearing date | 25 Jan 2005 |
| Determination date | 20 May 2005 |
| Member | J Scott |
| Representation | J Barratt-Boyes ; G Vickers |
| Location | Auckland |
| Parties | Reid v Vickers Marketing Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Alleged unjustified dismissal or alternatively constructive dismissal - Applicant hired three salespeople whom he transported to and from their sales areas as well as taking them for refreshment stops - Was provided with company car for that purpose - Remuneration was by way of retainer and commissions, including $5 override commission on sales made by his team members - Relationship with team deteriorated - Incompatibility - Team members alleged he left them alone in the dark waiting for pick ups at night - Also alleged abused verbally and sent inappropriate texts - Respondent attempted to resolve issue between team members - Though some initial resolution team members later refused to work for applicant - Respondent removed car from applicant and gave to team member - Demotion plus loss of wages since no longer receiving override commission - Procedurally unfair - Predetermination - Demotion unfair and amounted to serious breach of duty which justified applicant treating employment as at an end - Outcome entirely foreseeable - Constructive dismissal - Credibility finding in favour of respondent - Remedies - Due to depressive illness after dismissal did not weigh duty to mitigate loss during three months after dismissal but limited period to three months - Contributory conduct 50 percent - Entitled to compensation for loss of use of car - Had been fully reimbursed for telephone expenses so no award made - No award made for claim for rent and bond since sales did not reach numbers required before arrangement applied - ARREARS OF WAGES - Entitled to overrides on all sales concluded by his team members during his employment - Monies due and owing if not yet paid - Unlawful deduction of $2,074 from wages - Though deduction amounted to an agreed wash up between parties to balance the retention of cash deposits by applicant, no written authority - Respondent to pay monies to reimburse for deduction - Team leader/manager |
| Result | Application granted ; Reimbursement of lost wages ($15,175.22 reduced to $7,588.11) ; Reimbursement of lost benefit ($2,500 reduced to $1,250) ; Compensation for humiliation etc ($3,000 reduced to $1,500) ; Application dismissed (Telephone rental and rent and bond) ; Arrears of wages (Quantum to be determined)(Overrides) ; ($2,074)(Unlawful deduction) ; Costs reserved |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963;BP Oil NZ Ltd v Northern Distribution Workers Union [1989] 3 NZILR 276 ; [1989] 3 NZLR 580;Harris v Chief Executive, Department of Corrections [2000] ERNZ 544;NZ Amalgamated Engineering etc IUOW v Ritchies Transport Holdings Limited [1991] 2 ERNZ 267;NZ (with exceptions) Food Processing etc IUOW v Unilever NZ Ltd [1990] 1 NZILR 35 |
| Number of Pages | 8 |
| PDF File Link: | aa 188_05.pdf [pdf 45 KB] |