| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 23/10 |
| Hearing date | 23 Oct 2009 |
| Determination date | 19 January 2010 |
| Member | R A Monaghan |
| Representation | G Whyte ; T Holland, A Morris |
| Location | Auckland |
| Parties | Whyte v Creative Force Media Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed redundancy not genuine - Claimed unjustifiably dismissed following dispute regarding terms of employment agreement (“EA”) – Applicant declined respondent’s EA offer – Applicant presented counteroffer EA providing for redundancy compensation – Respondent failed to respond to counter-offer for 5 months - Respondent experienced financial difficulties and redundancies imposed on other employees – Respondent later became aware of applicant’s counteroffer EA - Altercation between parties – Applicant subsequently made redundant – Respondent offered to refer clients to applicant – Applicant declined offer – Authority found redundancy genuine as respondent’s report indicated poor financial performance – Found redundancy procedurally unjustified due to lack of consultation and insufficient information explaining immediate redundancy – Dismissal unjustified –REMEDIES – No contributory conduct – Declined compensation award as no evidence of injury to feelings – Declined lost wages award as applicant would have been dismissed even if proper procedures followed – BREACH OF CONTRACT - Applicant sought redundancy compensation on grounds of contractual entitlement – Respondent argued unaware of redundancy compensation clause in counteroffer EA – Authority found applicant contractually entitled to redundancy compensation – Found respondent’s failure to respond, coupled with applicant’s 5 months employment, meant respondent acquiesced to counteroffer EA – Respondent ordered to pay applicant $3,333 redundancy compensation – Interest payable - ARREARS OF WAGES – ARREARS OF HOLIDAY PAY – Applicant sought $1,259 arrears of holiday pay owed by former employer (“X”) against respondent – Claimed X’s manger (“Y”) agreed to transfer liability for applicant’s holiday pay to respondent – Authority found even if Y offered to transfer liability, Y had no authority to bind respondent at time arrangement made – Respondent not liable for holiday pay owed by X - Applicant sought $565 arrears of holiday pay against respondent – Respondent argued overpayment of applicant’s holiday pay – Argued holiday pay incorrectly calculated as 15 days paid annual leave when should have been 10 days – Found unlikely respondent agreed to paid leave for 15 days – Found more likely respondent acquiesced in applicant taking subsequent time off with reference to work being done on specified weekends – Found applicant performed wok on weekends and should be compensated for as time off in lieu – Found $50 overpayment of holiday pay – Respondent had not sought recovery of monies against applicant for overpayment - Arrears of holiday pay declined – Applicant sought two days arrears of wages – Found if arrears not already paid, respondent ordered to pay respondent $307 - PENALTY – Applicant sought penalties for breach of good faith obligations – Authority declined penalty award as claim particularised too broadly – Graphic Designer |
| Result | Applications granted (Unjustified dismissal)(Breach of contract)(Arrears of wages); Applications dismissed (Arrears of holiday pay) (Penalty) ; Arrears of wages ($307.69) ; Redundancy compensation ($3,333.33) ; Interest (4.8%) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Wages Protection Act 1983 |
| Number of Pages | 9 |
| PDF File Link: | aa 23_10.pdf [pdf 29 KB] |