| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 164/06 |
| Hearing date | 9 Mar 2006 |
| Determination date | 10 May 2006 |
| Member | R Arthur |
| Representation | L Turner ; P Davey |
| Location | Auckland |
| Parties | Hormann v Virtual Warehouse Ltd |
| Summary | DISPUTE – Applicant sought declarations concerning three matters - Whether wages and holiday pay forgone as part of agreement to purchase shares – Whether entitled to other additional annual leave – Whether respondent breached duties as employer by treating applicant unfairly during and after maternity leave - Respondent in financial difficulty and unable to pay wages in full – Arrangement for applicant to take up 25 percent shareholding – Respondent alleged agreement included applicant permanently forgoing entitlement to accrued unpaid wages and holiday pay to certain date of over $100,000 – Applicant later took period of annual leave after initial period of maternity leave – Alleged respondent had said applicant had “plenty of leave” and should take it – Dispute over whether starting point for calculation of annual leave was recorded entitlement – Alleged unfair treatment after return from maternity leave by making applicant feel ill at ease and holding inappropriate staff meeting – Absent on stress leave pending investigation meeting - Applicant’s conduct following share agreement including deletion of accruals from accounting system consistent with permanent loss of accrued entitlements – Value of shares not disproportionate to value of forgone entitlements as portion of shareholder advances assigned to applicant and accrued tax losses of significant potential value - On balance of probabilities agreement was as alleged by respondent – Applicant not entitled to payment of accrued wages and holiday pay to certain date – At time respondent encouraged applicant to take further paid leave, both parties aware that recorded entitlement was inflated due to certain financial arrangements – However, respondent intended applicant to use recorded annual leave entitlement as additional paid leave – Proper starting point for calculation of leave entitlements was on basis of recorded entitlement as alleged by applicant – Respondent met with applicant numerous times during maternity leave - Repeated efforts to ease applicant’s return to work including several informal meetings to talk through issues – Nothing inappropriate about staff meeting to discuss issues affecting future of employees jobs with respondent – No unfair treatment – Leave reserved for either party to apply for direction to mediation to facilitate return to work – Financial controller |
| Result | Questions answered in favour of respondent (Forgone wages and holiday pay ; Unfair treatment) ; Question answered in favour of applicant (Calculation of residual leave entitlements) ; Costs reserved |
| Cases Cited | PBO Ltd v Da Cruz unreported, Colgan CJ, Travis, Shaw JJ, 9 December 2005, AC 2A/05 |
| Number of Pages | 8 |
| PDF File Link: | aa 164_06.pdf [pdf 54 KB] |