| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 347/10 |
| Hearing date | 7 Jul 2010 |
| Determination date | 04 August 2010 |
| Member | R A Monaghan |
| Representation | D Small ; E Groves |
| Location | Tauranga |
| Parties | Watkins & Anor v Lobster Club Ltd |
| Other Parties | Watkins |
| Summary | UNJUSTIFIED DISMISSAL - Applicants’ claimed unjustifiably dismissed - Respondent claimed applicants’ walked away from employment - Respondent operated Lobster Club Restaurant and Bar (“LCRB”) - LCRB formerly operated by another company (“GCGL”) of which Mr Groves (“E”) and Mrs Groves (“D”) were directors and shareholders - E sought partner for LCRB - Applicants, E and D reached agreement would invest in new company, the respondent, and buy LCRB from GCGL - Shareholders agreement provided applicants and E and D would have 500 shares each and would all be directors of respondent - Shareholders agreement provided applicants would be employed by respondent under separate employment agreements - Respondent’s business effected by construction of new road and bridge on causeway where LCRB located - E became concerned about deterioration of business, perceived lack of suggestions for improvement from applicants, and lack of communication about daily running of respondent - Parties discussed E’s concerns at meeting - Second applicant began maternity leave - E spoke to first applicant about possible purchase of E and D’s interest in respondent - Parties unable to reach agreement on possibility of full or partial buyout of shares - First applicant claimed dismissed when reported to work to find sous chef carrying out his duties - First applicant claimed E told him thought applicant had resigned and that second applicant’s employment had ended - E denied saying second applicant could not return to work - Parties unable to resolve issue - Authority found shareholding agreement meant applicants were directors and half owners of own employer - Found employment was condition of shareholding - Found nothing in shareholding agreement or any other record to indicate board or shareholders gave E authority to dismiss applicants - Found shareholding agreement expressly required unanimous agreement of shareholders to dismiss second applicant - Authority had concerns about accuracy of evidence about contents of discussions between parties - Found likely first applicant took what was said at one meeting out of context of true dispute between parties - Found E likely impatient to resolve shareholding issue and sought to press for resolution by saying applicants jobs would no longer exists if matter not resolved - Found likely discussions were heated and E overbearing - However, found exchanges between parties did not amount to a dismissal of either or both applicants - No dismissal - ARREARS OF HOLIDAY PAY - First applicant sought unpaid holiday pay based on figures from payslips - Authority found records showed applicant paid for fortnight after believed dismissed - Found unlikely first applicant attended work for that period - Authority deducted amount from sum sought by first applicant - Respondent to pay first applicant $1,246 arrears of holiday pay - Second applicant sought unpaid holiday pay based on last payslip before went on maternity leave - Found respondent provided no evidence for claim second applicant not working full time prior to going on maternity leave - Authority relied on record provided - Respondent to pay second applicant outstanding arrears of holiday pay - Chef/General Manager |
| Result | Application dismissed (Unjustified dismissal) ; Application granted (Arrears of wages) ; Arrears of holiday pay ($1,246.16)(Applicant 1)($1,353.84)(Applicant 2) ; Costs reserved |
| Main Category | Personal Grievance |
| Number of Pages | 10 |
| PDF File Link: | aa 347_10.pdf [pdf 30 KB] |