| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 96/10 |
| Hearing date | 7 Apr 2010 - 8 Apr 2010 |
| Determination date | 14 May 2010 |
| Member | P R Stapp |
| Representation | T Kennedy ; no appearance, A Higgins |
| Location | Wellington |
| Parties | Kanar v Gurleyen & Anor |
| Other Parties | Sultan's Harem Ltd |
| Summary | PRACTICE AND PROCEDURE – No appearance for first respondent – Identity of employer – Applicant claimed first respondent applicant’s employer – Claimed second respondent subsequently became employer after company director changed – First respondent director of second respondent - Applicant and first respondent verbally agreed applicant employed at restaurant (“H”) and paid salary – No written employment agreement (“EA”) provided – No wages paid – First respondent subsequently executed agreement to appoint business partner (“S”) as director of second respondent – Agreement appointed applicant as second respondent’s manager – First respondent resigned as second respondent’s director however continued to run business – Applicant continued employment after agreement - Non-payment of wages continued – First respondent told applicant to leave if unhappy about work situation – Applicant left employment - Personal grievance raised – Applicant’s evidence preferred – Authority questioned credibility of second respondent’s witnesses - Authority found first respondent applicant’s employer prior to execution of agreement – Found documents recording wage payments showed first respondent applicant’s employer – Found after agreement executed, IRD recorded second respondent as employer – Found respondents jointly and severally liable as employer for substantive claims - UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed – Authority found applicant left employment because respondents failed to pay applicant wages – Found respondents’ actions repudiated verbal EA – Dismissal unjustified – REMEDIES – No contributory conduct – Reimbursement of three months lost wages - $3,000 compensation appropriate - ARREARS OF WAGES – ARREARS OF HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Authority ordered respondents jointly and severally to pay applicant $18,348 arrears of wages - Respondents ordered to pay applicant $1,100 arrears of holiday pay - PENALTY – Applicant sought penalty for failure to provide wages and time records – Authority found respondents’ breaches flagrant – First and second respondent ordered to pay $1,000 penalties - COMPLIANCE ORDER – Authority ordered first respondent to comply with earlier determination – Compliance ordered |
| Result | Applications granted ; Compliance ordered ; Orders made ; Arrears of wages ($18,348) ; Arrears of holiday pay ($1,100.88) ; Reimbursement of lost wages ($8,640) ; Compensation for humiliation etc ($3,000) ; Penalty ($1,000)(Payable to applicant) ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA cl12, sch2;ERA s134(5);ERA s159;Wages Protection Act 1983 s5 |
| Cases Cited | Kruesi v Hamua Holdings Ltd [1992] |
| Number of Pages | 14 |
| PDF File Link: | wa 96_10.pdf [pdf 43 KB] |