| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 457/09 |
| Hearing date | 9 Dec 2008 - 13 May 2009 (2 days) |
| Determination date | 17 December 2009 |
| Member | M Urlich |
| Representation | S Corlett ; P Tremewan |
| Location | Auckland |
| Parties | Xu v ANZ Sky Tours Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed bullying and unfair treatment by respondent made workplace unsafe therefore resignation reasonably foreseeable – Claimed respondent falsely alleged applicant sabotaged computer system and “selfish” in relation to calculation of commission payments – Applicant alleged respondent shouted offensive language when applicant made mistakes on several occasions – Alleged respondent deducted $670 from applicant’s wages after one incident – Alleged respondent threatened applicant with dismissal if applicant did not follow instructions – Respondent argued applicant’s errors caused concern and took reasonable steps to address concerns – Authority accepted respondent had combative style and reacted strongly to stressful situations – Found, however, no evidence applicant raised employment relations concerns - Found insufficient evidence to establish applicant targeted by respondent to show bullying – Found applicant accepted degree of volatility in workplace – Found resignation not reasonably foreseeable – UNJUSITIFED DISADVANTAGE – Applicant claimed unilateral withdrawal of right to be paid commission, failure to pay annual leave entitlement, unlawful deductions from wages, respondent prevented applicant from earning commission by misdirecting applicant’s duties, and failure to pay statutory holiday entitlement caused unjustified disadvantage – Authority found no jurisdiction to consider unilateral withdrawal of right to earn commission and unlawful deductions as outside limitation period – Found no evidence applicant applied for annual leave to support claim – Found employment agreement (“EA”) did not provide right to commission – Found respondent entitled to direct applicant’s work within reasonable parameters of EA – No disadvantage - DISPUTE – Whether calculation of commission payments correct – Applicant sought $10,422 commission payments – No dispute verbal agreement made to entitle applicant to commission - Applicant claimed respondent unilaterally changed terms – Respondent argued changed terms as calculations incorrect – Authority found insufficient evidence to answer question - Authority granted leave for parties to provide further evidence and submissions – ARREARS OF WAGES – AREARS OF HOLIDAY PAY – Applicant sought arrears of wages for working statutory holidays and holiday pay – Respondent unable to produce time, wage and holiday records – Authority accepted respondent’s failure to keep records prevented applicant from making accurate holiday pay claim – Accepted holiday pay claim as proved – Found arrears of wages claim bare assertion - Respondent ordered to pay applicant $6,625 arrears of holiday pay - RECOVERY OF MONIES – Applicant sought recovery of $670 for unlawful deduction of wages – Respondent argued deductions penalties for incorrect bookings - Authority found no evidence to support respondent’s claim deduction reasonable or lawful – Found deduction unlawful – Respondent ordered to pay applicant $670 – PENALTY – Authority awarded $750 penalty against respondent for failure to keep holiday, wage and time records |
| Result | Application granted (Arrears of holiday pay)(Penalty) ; Applications dismissed (Unjustified dismissal)(Unjustified disadvantage)(Arrears of holiday pay)(Recovery of monies) ; Dispute (Leave granted) ; Arrears of holiday pay ($6,625) ; Penalty ($500)(Failure to keep accurate holiday records)(Half payable to Crown)(Half payable to applicant) ($250)(Failure to keep wage and time records)(Payable to applicant) ; Costs reserved |
| Main Category | Dispute |
| Statutes | ERA s103A;ERA s103(1)(b);ERA s114;ERA s130(4);ERA Second Schedule cl11;Holidays Act 2003 s81;Holidays Act 2003 s83;Wages Protection Act 1983 s30 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authority Officers’ IUOW [1994] ERNZ 168;Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372 |
| Number of Pages | 16 |
| PDF File Link: | aa 457_09.pdf [pdf 66 KB] |