| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 318/06 |
| Hearing date | 20 Sep 2006 |
| Determination date | 11 October 2006 |
| Member | V Campbell |
| Representation | Keightly (Labour Inspector), J Ur Rehman (in person) ; A Hope |
| Location | Auckland |
| Parties | Keightly (Labour Inspector) & Anor v Pakiwi Traders Ltd t/a Tandoor Pakistani Cuisine |
| Other Parties | Ur Rehman |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY – Application by Labour Inspector on behalf of second applicant for outstanding holiday pay – Application by second applicant (“applicant”) for unpaid wages and sick pay – Respondent did not deny claims but counterclaimed for damages and submitted that due to other factors should not have to pay debt - No dispute that amount calculated by applicants correct and that liability existed - BREACH OF CONTRACT - Counterclaim - Respondent claimed applicant left with insufficient notice - Sought $43,087 for loss suffered as result of breach of employment agreement – No evidence parties agreed on length of notice required - Applicant claimed unable to give any notice as working conditions so poor and felt treated as a slave – Applicant entitled to leave without notice - Actions directly attributable to respondent and its managing director included breaches of Employment Relations Act 2000 (ERA") and Holidays Act 2003, possession of applicant’s passport, searches of applicant’s personal belongings and correspondence, and notification to Immigration of intent not to continue applicant’s employment together with notification of serious allegations against applicant after he sought assistance from DoL to enforce his minimum employment rights – Applicant aware director contacted Immigration and that he played a role in deportation of applicant’s cousin – Director had alleged applicant and his cousin had links to terrorist organisation - Applicant fearful of what director would do to him once he contacted authorities – Respondent’s actions entitled applicant to treat contract as being at an end and to leave employment as he did - Breach of contract claim dismissed – Estoppel - Respondent argued applicant estopped from succeeding in his claims – Submitted estoppel arose from applicant’s failure to advise respondent he was leaving employment, which denied respondent opportunity to arrange payment – ERA provides for actions relating to employment problems that are not personal grievances to be taken for period of up to six years following event - Applicant put arrears claim in hands of Labour Inspector – Respondent fully informed and participated in investigation – Authority did not accept applicant failed to request payment – Respondent submitted applicant's actions put company into position where it could not pay entitlements as he had denied respondent opportunity to replace him and therefore business could not make an income – Applicant entitled to leave employment - Submission not accepted by Authority – Labour Inspector and applicant entitled to pursue claims - ARREARS OF WAGES AND HOLIDAY PAY HOLDING – Monies due and owing - Also entitled to interest on amount owing of 8.66 percent – PENALTY – Respondent failed to comply with requirements of Holidays Act 2003 – Appropriate to impose penalty - Authority assisted by Department of Labour interpreter" |
| Result | Application granted ; Arrears of holiday pay ($5,872.60) ; Interest on holiday pay (8.66 percent) ; Arrears of wages ($1,026.20) ; Penalty ($1,000)(Payable to Crown) ; Filing fee in favour of first applicant ($70) ; Filing fee in favour of second applicant ($70) |
| Statutes | ERA s65;ERA s66;ERA s66(4);ERA s66(6);ERA s142;ERA Second Schedule cl 11;Holidays Act 2003;Holidays Act 2003 s75 |
| Cases Cited | Kitchen Pak Distribution Ltd v Stocks [1993] 2 ERNZ 401 |
| Number of Pages | 12 |
| PDF File Link: | aa 318_06.pdf [pdf 63 KB] |