| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 114/09 |
| Hearing date | 1 Apr 2009 |
| Determination date | 08 April 2009 |
| Member | V Campbell |
| Representation | A Wilkie, C Hughes (in person) ; no appearance |
| Location | Hamilton |
| Parties | Wilkie & Anor v Hughes & Anor |
| Other Parties | Hughes ; Hughes |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - No appearance for respondents - Applicants returned to family farm to assist respondents with milking - Applicants claimed constructively dismissed after respondents breached employment agreement and failed to pay them regularly each fortnight - Claimed no option but to look for alternative employment - At investigation meeting applicants acknowledged all monies owed had been paid and were no outstanding wages - Authority found when applicants started looking for alternative employment respondents not paid wages on time at all during employment relationship - Were paid occasionally, but only after repeated verbal and written requests, also, discovered PAYE and Kiwisaver deductions had not been rendered to IRD - Authority found not paying wages as they fall due was repudiatory conduct on part of employer - Authority satisfied respondents breached duty to applicants and that breach was significant enough that resignation likely - Applicants constructively dismissed - Remedies - No contributory conduct - First applicant secured alternative employment within one week - Second applicant remained unemployed and no evidence of steps taken to mitigate loss - Authority satisfied applicants accepted offer of employment knew would not include second applicant - Reimbursement for one weeks’ lost wages appropriate - Authority satisfied applicants suffered humiliation and distress as result of respondents unjustified actions - Second applicant yelled at by second respondent and was embarrassed at having to ask her brother’s wife repeatedly to pay wages - Employment relationship problem caused rift between family members - Taking overall view of circumstances award of $5,000 compensation appropriate - Milkers |
| Result | Application granted ; Reimbursement for lost wages ($565.25)(Applicant 1) ; Reimbursement for lost wages ($565.25)(Applicant 2) ; Compensation for humiliation etc ($2,500)(Applicant 1) ; Compensation for humiliation etc ($2,500)(Applicant 2) ; Disbursements in favour of applicants ($70)(Filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s124;ERA Second Schedule c12 |
| Cases Cited | Auckland Electric Power Board v Auckland Provision District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168;Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372;Malik v Bank of Credit and Commerce International SA (in liq) [1998] AC 20 ; [1997] 2 All ER 1 |
| Number of Pages | 5 |
| PDF File Link: | aa 114_09.pdf [pdf 22 KB] |