| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 117/06 |
| Hearing date | 1 Nov 2005 |
| Determination date | 06 April 2006 |
| Member | V Campbell |
| Representation | C Bennett ; J Coyle |
| Location | Auckland |
| Parties | John Gilbert & Company Ltd and Anor v Chiu and Anor |
| Other Parties | Chiu, John Gilbert & Company Ltd |
| Summary | BREACH OF CONTRACT - Alleged failure to provide proper notice of resignation – Employment agreement required one month’s written notice of termination – Employee provided three weeks written notice of resignation – Subsequently retracted notice verbally in meeting with managers – Immediately after meeting employee informed managing director still intended to leave – One month later called in sick then stopped attending work - Informed employer had found alternative employment – Employee provided required notice as did not leave work until one month after reconfirming intention to leave – No breach of employment agreement – Attempt to hide employment with new company by pretending to be ill amounted to breach of good faith – No penalty sought – OTHER MONIES – Claim by employer for overpayment of salary due to accounting error – Monies due and owing – JURISDICTION – Unjustified disadvantage grievance raised within 90 day period - UNJUSTIFIED DISADVANTAGE – Counter-claim - Pressure from applicant to meet deadlines necessitated long hours of work – Number of complaints from employee – Failure to provide medical insurance as required by employment agreement was oversight rectified when brought to employer’s attention – Unjustified disadvantage in relation to long hours but not failure to provide medical insurance – BREACH OF CONTRACT – Counter-claim for payment for overtime hours worked and unpaid meal allowance – Most recent employment agreement provided for payment of all-inclusive salary – No extra payment for overtime hours required – Accepted that employee entitled to meal allowance in certain circumstances and allowance not always paid – Inadequate evidence of actual amount owed – Parties to attempt resolution of issue between themselves - ARREARS OF HOLIDAY PAY – Arrears of holiday pay as calculated by labour inspector due and owing – PENALTY – Failure to provide meal allowance unintentional breach of employment agreement – No penalty imposed – Penalty imposed for failure to provide wage and time records – Length of service eight years with four month cessation of employment after first four years – Engineer |
| Result | Application dismissed (Failure to provide notice) ; Application granted (Overpayment of salary) ; Monies in favour of employer ($1,087.91)(Repayment of salary) ; Counter-claims dismissed (Unjustified disadvantage (medical insurance), Breach of contract (payment for overtime hours)) ; Counter-claim reserved for further consideration if necessary (Breach of contract (meal allowance)) ; Counter-claims granted (Unjustified disadvantage (long hours), (Arrears of holiday pay) ; Compensation for humiliation etc ($3,000) ; Arrears of Holiday Pay ($4,914.24) ; Penalty ($500)(Payable to Crown) ; Costs reserved |
| Statutes | ERA s4;ERA s103(1)(b);ERA s123(c)(i);ERA s130(4);Holidays Act 2003 |
| Cases Cited | Wellington Area Health Board v Wellington Hotel IUOW [1992] 2 ERNZ 466 ; [1992] 3 NZLR 658 |
| Number of Pages | 12 |
| PDF File Link: | aa 117_06.pdf [pdf 53 KB] |