| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 352/10 |
| Hearing date | 1 Dec 2009 |
| Determination date | 09 August 2010 |
| Member | A Dumbleton |
| Representation | S Lomas ; K Jones |
| Location | Auckland |
| Parties | Original Stone Company Ltd v Adams |
| Summary | RECOVERY OF MONIES – Respondent left employment two weeks before fulfilled minimum service period of 12 months – Applicant sought order requiring respondent to pay-back $10,000 in accordance with employment agreement (“EA”) – Respondent claimed pay-back term amounted to penalty and unenforceable – Authority found pay-back term not penalty – Respondent claimed cancelled EA and as result pay-back provision unenforceable – Found while EA remained binding pay-back provision enforceable against applicant – Respondent admitted owed $42 in relation to parking fine incurred while performing work for applicant – Authority ordered payment of fine – Applicant sought to recover text-parking expenses – Found no evidence of expenses – COMPLIANCE ORDER – Applicant sought compliance with EA – Found at time respondent left employment respondent substantially performed requirement under EA – Found applicant could have avoided situation by requiring respondent work out agreed four week notice period – Found applicant waived notice period but did not offer to lower minimum service period by corresponding two weeks – Found respondent lost trust and confidence in applicant and resigned and no point in applicant requiring respondent to keep working – Found applicant breached s63A Employment Relations Act 2000 – Found applicant not given reasonable time to seek independent advice before signing EA – Compliance declined – COUNTERCLAIM – PENALTY – Respondent sought penalty for applicant’s failure to give reasonable opportunity to seek legal advice before signing EA – Found pay-back term offered on take-it-or-leave-it basis and respondent not given opportunity to take legal advice – Found penalty sought outside 12 month time period – No penalty awarded – BREACH OF CONTRACT – Respondent claimed induced to enter into EA by material misrepresentations by applicant – Respondent claimed breach of implied terms of EA – Found no misrepresentations – Found respondent worked for applicant previously and left over dissatisfaction over sales tools and resources provided by applicant – Found expected that before returning to company respondent would require applicant put into EA terms reflecting promises – Found matters discussed not terms of EA – No breach of EA |
| Result | Application partially granted (recovery of monies) ; Application dismissed (breach of contract) (penalty) (compliance order) ; Recovery of monies ($42) ; Costs reserved |
| Main Category | Recovery of Monies |
| Statutes | ERA s63A;ERA s63A(2);ERA s63A(3);ERA s63A(4);ERA s134;ERA s135(5);ERA s137;Contractual Remedies Act 1979 s6;Contractual Remedies Act 1979 s7;Contractual Remedies Act 1979 s7(5);Contractual Remedies Act 1979 s10 |
| Number of Pages | 14 |
| PDF File Link: | aa 352_10.pdf [pdf 53 KB] |