| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 181/10 |
| Hearing date | 31 May 2010 - 1 Jun 2010 (2 days) |
| Determination date | 08 November 2010 |
| Member | P R Stapp |
| Representation | S Parsons ; R Oakley |
| Location | Palmerston North |
| Parties | Damacharla & Ors v Southern Rocks Pacific Ltd |
| Other Parties | Uppalapati, Kothapalli |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY – Applicants liked in India and recruited and employed by respondent – Start date in dispute – Authority found employment agreements useful starting reference – Found timesheets not reliable – Found likely factory shut down during festive seasons – Found diary notes not reliable – Found decision by applicants not to return to work likely made because not being properly paid – Found no agreement to work 30 hours per week or consultation to vary hours – Found applicants had reasonable expectation to work 40 hours per week – Found more than likely applicants worked more than 30 hours per week – Authority determined start dates – Found applicants’ claim for overtime and extra hours not persuasive – Found driving associated with employment with respondent – Found third applicant failed to establish claim for wages due because of injury – Found deduction to be made for payments to family received by first applicant during employment – Found first applicant owed $23,737 including holiday pay for days of shut down – Found annual leave also due and owing – Found second applicant owed $15,260 including deduction for trip to India and including holiday pay for days of shut down – Found third applicant owed $23,575 including holiday pay for days of shut down – Found annual leave also due and owing – Applicants claimed owed money paid to respondent in India – Found no contractual terms or documents for repayment – No order on payments – Interest payable – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Found applicants not paid regularly and primary reason for leaving employment related to failure by respondent – Found foreseeable applicants would leave employment – Found first applicant failed to make out claim not properly treated during employment – Found claims around requirement to get New Zealand drivers licence unclear – Found underpaid wages significant – Found no claim for leaving employment because workplace unsafe – Constructive dismissal – REMEDIES – No contributory conduct – $4,800 reimbursement of lost wages appropriate – Found applicants failed to establish difference in wages between respondent and new employment – $2,000 compensation appropriate – BREACH OF CONTRACT – Found respondent in breach of employment agreements for not correctly paying wages on time – PENALTY – $500 penalty appropriate for wilful and deliberate action in denying applicants’ proper use of wages – Found respondent failed to keep wages, time and holiday records – Found failure deliberate – Penalty appropriate – Applicants sought penalty for breach of good faith – Authority declined to impose penalty – Stone Masons |
| Result | Applications granted ; Arrears of wages and holiday pay ($23,737.52)(first applicant) ($15,260.35)(second applicant) ($23,575)(third applicant) ; Arrears of annual leave ($600)(first applicant) ($240)(second applicant) ($600)(third applicant) ; Arrears of holiday pay ($816)(first applicant) ($672)(second applicant) ($672)(third applicant) ; Reimbursement of lost wages ($4,800)(first applicant) ($4,800)(second applicant) ($4,800)(third applicant) ; Compensation for humiliation etc ($2,000)(first applicant) ($2,000)(second applicant) ($2,000)(third applicant) ; Interest (5%) ; Penalty for breach of employment agreement ($500)(first applicant) ($500)(second applicant) ($500)(third applicant) ; Penalty for failing to keep wage and time records ($500)(first applicant) ($500)(second applicant) ($500)(third applicant) ($1,500)(payable to Crown) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s4;ERA s4A;ERA s130(4);ERA s132;ERA s134 |
| Number of Pages | 24 |
| PDF File Link: | wa 181_10.pdf [pdf 62 KB] |