| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 240/08 |
| Hearing date | 14 May 2008 |
| Determination date | 08 July 2008 |
| Member | M Urlich |
| Representation | B Molloy ; C Tomaszyk |
| Location | Auckland |
| Parties | Liu v Chen and Anor |
| Other Parties | McFinanace Agency Ltd |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Investigation assisted by Mandarin translator – First respondent (“M”) also shareholder and director of company (“EC”) – M argued respondent a contractor of EC and employees entitled to hold themselves out as employees of EC – M argued second respondent employed applicant – Authority found despite apparent confusion as to identity of employer, respondent proper employer of applicant – RECOVERY OF MONIES – Applicant argued unjustifiably dismissed and sought payment of outstanding bonus payments – Respondent argued applicant’s position genuinely redundant – M argued agreed to pay applicant salary and provide sales target – M argued no agreement to bonus and sales target to motivate applicant – Applicant argued bonus discretionary – Authority found applicant negotiated commission payment when made large sale – Authority found chance to negotiate bonus was term agreed by parties – Found most applicant could claim was chance to discuss bonus – Authority formed tentative view other than instance when received bonus, applicant did not exceed sales target – Found no basis to discuss bonus existed – Authority granted applicant leave to provide further evidence of sales figures – Authority found no term agreed as to petrol reimbursement – PENALTY – Applicant sought penalty for respondent’s failure to provide written employment agreement (“EA”) – Respondent argued no factual basis for penalty because M instructions to solicitor to prepare EA showed intended to comply with s63A and s65 Employment Relations Act 2000 – Authority found proposed EA not provided to applicant during bargaining for EA – Found $500 penalty appropriate – UNJUSTIFIED DISMISSAL – M met with applicant and told applicant knew unhappy with work and bonus issue – Applicant told respondent could no longer support employment and better if employment ended – Authority accepted applicant’s evidence that worked out notice period – Authority found M unable to provide satisfactory explanation why applicant’s redundancy necessary – Found bare notice of redundancy did not meet required procedural standards – Authority found M’s evidence indicated mixed motives for dismissal – Authority found no evidence of trial period – Found applicant unjustifiably dismissed – Remedies – Authority found applicant entitled to $3461 reimbursement of lost wages – Authority accepted applicant dismayed and shocked by dismissal and found $6,000 compensation appropriate – Insurance broker |
| Result | Application granted (Dismissal) ; Reimbursement of lost wages ($3461.52) ; Compensation for humiliation etc ($6,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s65;ERA s63A;ERA s103A;ERA s67 |
| Number of Pages | 9 |
| PDF File Link: | aa 240_08.pdf [pdf 39 KB] |