| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 247/06 |
| Hearing date | 7 Jul 2006 |
| Determination date | 20 July 2006 |
| Member | R A Monaghan |
| Representation | M Smyth ; K Blackman |
| Location | Auckland |
| Parties | Busby v Talent Base Ltd |
| Summary | PRACTICE AND PROCEDURE - Application to reopen investigation - Respondent claimed out of country and unaware employment relationship problem filed - Disputed amounts awarded to applicant - Background did not make for compelling application to reopen - However, apparent original orders should be amended - Unpaid wages and holiday pay to be recalculated - Qualifying billings for commission reduced by agreement - Written agreement silent about commission for billings in excess of $28,000 - Applying usual approach to interpretation Authority might have accepted no commission payable on those billings - However, commission supposed to provide incentive and lack of further commission was disincentive - Authority did not accept that was parties' intention and no evidence to suggest intended to cap commission - Commission payable on billings over $28,000 at top rate of sliding scale - $7,185 commission payable - Given applicant's acknowledgment of overpayment, parties urged to take pragmatic approach to resolving issue of deductions - Leave reserved if unable to resolve matter - PENALTY - Authority allowed reintroduction of penalty application withdrawn at original investigation, but declined to address additional application for penalties against director personally - Failure to attend to final payment breached employment agreement - Subsequent payment attempt to remedy breach and weighed in respondent's favour - Reason for not paying commission not very compelling - Timely payment of wages too important to allow failure to address matter to go unpenalised - Director inexcusably lax - $2,000 penalty for breach of employment agreement - Authority did not believe actions reached level of deliberate, serious, or sustained breaches of duty of good faith set out in s4A Employment Relations Act 2000 - Declined to order further penalty for breach of good faith - Talent manager |
| Result | Orders accordingly ; Penalty ($2,000)(Payable to Crown) ; Interest (7.5%) ; Costs reserved |
| Statutes | ERA s4A;ERA s133;ERA s136;Holidays Act 2003 s23;Wages Protection Act 1983 |
| Cases Cited | Busby v Talent Base Ltd unreported, R Monaghan, 2 June 2006, AA 194/06 |
| Number of Pages | 6 |
| PDF File Link: | aa 247_06.pdf [pdf 77 KB] |