| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 269/08 |
| Hearing date | 25 Jun 2008 |
| Determination date | 30 July 2008 |
| Member | V Campbell |
| Representation | D Wallbank (Applicant in person) ; V White |
| Location | Taupo |
| Parties | Wallbank v Lewthwaite Engineering Ltd |
| Summary | JURISDICTION – Respondent argued never employed applicant - Applicant did casual work for respondent during holiday period of prior employment – Applicant claimed discussed what job would entail at length and was offered job – No written employment agreement – Respondent argued if had offered applicant job, would have provided written employment agreement – Argued salary claimed not possible due to company profit and as applicant did not have a particular qualification – Authority found conceivable that offered claimed salary given similar salary and role of another employee of respondent – Applicant given access to pooled company vehicle – Respondent paid for applicant to undertake safety competence course as representative of respondent – Respondent conceded applicant undertook some work for respondent – Applicant paid twice by cheque - Authority satisfied that fortnightly salary payment for salary claimed, net of PAYE, equated to amount paid in cheque – Found more likely than not that applicant employed by respondent – Authority had jurisdiction - ARREARS OF WAGES AND HOLIDAY PAY – Applicant employed four and a half weeks – Received two payments during employment – Shortfall in what was paid and what ought to have been paid outstanding ($1,406.25) – Authority satisfied holiday pay outstanding ($375) - UNJUSTIFIED DISMISSAL – Respondent travelled overseas – On return, discovered information had given applicant had been passed on to applicant’s wife, then to respondent’s wife – Applicant claimed respondent told him was dismissed – Respondent claimed told applicant off for discussing personal business, and applicant not returned to work since conversation – Authority found respondent dismissed applicant by telephone – Dismissal carried out with no procedural fairness and no basis for justification – Dismissal unjustified – Remedies – Applicant found new employment after three weeks – Authority found applicant entitled to reimbursement of three weeks lost wages ($2,812.50) – Applicant provided little evidence to support claim for compensation for distress and humiliation – Authority considered levels of awards for similar circumstances – $1,500 compensation appropriate – No contributory conduct - PENALTY – Applicant claimed penalties for respondent withholding wages and holiday pay and failing to provide written employment agreement – Authority found respondent breached Wages Protection Act by failing to pay applicant entire amount of wages as they became payable – Having regard to circumstances and interests of justice, Authority declined to order penalty – Authority found respondent aware of obligation to provide written employment agreement – Found likely that had recorded relationship, problem may not have occurred – Penalty of $250 to be paid to Crown – Costs reserved - Building site supervisor |
| Result | Application granted ; Arrears of wages ($1,406.25) ; Holiday pay ($375) ; Reimbursement of lost wages ($2,812.50)(3 weeks) ; Compensation for humiliation etc ($1,500) ; Penalty ($250)(Payable to Crown) ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s65;ERA s103A;ERA s124;Wages Protection Act 1983 s4 |
| Number of Pages | 8 |
| PDF File Link: | aa 269_08.pdf [pdf 29 KB] |