| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 388/07 |
| Hearing date | 12 Jun 2007 - 13 Jun 2007 (2 days) |
| Determination date | 11 December 2007 |
| Member | V Campbell |
| Representation | P Barrowclogh ; A Stuart |
| Location | Auckland |
| Parties | Stone v Villages of New Zealand (Pakuranga) Ltd |
| Summary | ARREARS OF WAGES - Applicant sought commission payments - Initially, no written employment agreement - Applicant concerned at provision in subsequent formal agreement that provided for reduced commission if certain circumstances - Matters complicated as applicant had requested all payments be deferred during start of employment for purposes of reducing income for child support calculation - Meant different understandings about payment did not become known for nearly a year - Reduced commission not a term of employment - Commission due and owing - Applicant also sought reimbursement of deductions - No express authority for deductions - Entitled to repayment of money taken for curtains as not instructed curtains no longer to be provided - No reimbursement for commission he was never entitled to claim - UNJUSTIFIED DISMISSAL - Constructive dismissal - On balance of probabilities respondent breached duty to treat applicant fairly and reasonably as result of unlawful deductions, underpayments and failure to ensure all sales lead referred to him - Breach of good faith - Reasonably foreseeable applicant would resign due to breach - However, sales with unpaid commissions and deductions occurred after applicant sought new job - Applicant accepted new employment but remained at respondent and took sick leave - Resigned days before contractually obliged to start new job - Applicant’s conduct regarding moving on from respondent misleading - Had also set up fake sales calls in breach of good faith - Respondent’s breaches not causative of resignation - Applicant resigned as due to commence new employment - No constructive dismissal - Sales person |
| Result | Application granted (Arrears) ; Arrears of wages ($10,320)(Commission) ; ($2,101.60)(Reimbursement of deductions) ; Application dismissed (Dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A;ERA s157;Wages Protection Act 1983 s5 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW [1994] 1 ERNZ 168;Auckland Shop Employees Union v Woolworth’s (NZ) Ltd [1985] 2 NZLR 372;Gorrie Fuel (SI) Ltd v Gittoes unreported, 8 November 2007, Couch J, CC21/07;Malik v Bank of Credit and Commerce International SA (in liq) [1998] AC 20; [1997] 3;All ER 1;W & H Newspapers Ltd v Oram [2001] 3 NZLR CA 29 |
| Number of Pages | 24 |
| PDF File Link: | aa 388_07.pdf [pdf 103 KB] |