| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 512/10 |
| Hearing date | 10, 11 Aug 2010 |
| Determination date | 15 December 2010 |
| Member | D King |
| Representation | O'Hagan (in person) ; R Clarke |
| Location | Hamilton |
| Parties | O'Hagan v Waitomo Adventures Ltd |
| Summary | UNJUSTIFIED DISMISSAL – ARREARS OF WAGES AND HOLIDAY PAY – Constructive dismissal – Respondent argued no constructive dismissal and counterclaimed applicant paid self travel allowance without agreement and paid unauthorised salary increase and money to own company (“CAL”) – Applicant claimed director of respondent (“A”) deliberately not putting enough cash through respondent’s books, resulting in false GST returns and incorrect royalties being paid – Applicant told A if concerns not satisfactorily resolved would consider continued employment with respondent – Respondent and Company (“S”) each owned 50/50 by A and W Family trusts – W also director of respondent – Subsequently applicant took over accounting for S – Shareholding changes resulted in A owning 100 percent of respondent and W owning 100 percent of S – A and W agreed respondent would continue accounting work for S – Applicant claimed concerned when gave letter regarding respondent’s accounting to A that A’s reaction could result in applicant’s dismissal resulting in serious issues over S’s accounting data – Claimed gave personal assurance to W regarding W’s data – W gave applicant full authority over S’s accounting records when applicant raised concerns – Subsequently contracting arrangement between S and respondent terminated – Authority found evident from applicant’s evidence had concluded A committed fraud – Found applicant subsequently refused to provide information as requested by employer and in doing so breached good faith obligations – Found refusal to supply information upon request fatal to applicant’s claim – Found applicant made very serious allegation against respondent – Found principle in Honda applied to situation where employee made serious allegation about employer and then claimed constructive dismissal – Authority rejected applicant’s view that A admitted taking cash and falsifying records – Found applicant tended to interpret matter favourable to self often leading to inaccurate assertions – Found no constructive dismissal – COUNTERCLAIM – Authority found applicant not getting authorisation for payments made to self and CAL was bad practice – Respondent sought repayment of all monies paid to CAL – Found improper of applicant to pay money due as employee of respondent to CAL, however, some payments legitimately should have been paid to self as employee – Authority ordered applicant to reimburse respondent $17,995 – ARREARS OF WAGES AND HOLIDAY PAY – Found $9,585.60 arrears of wages and holiday pay owing to applicant – Accountant |
| Result | Application dismissed (Constructive dismissal) ; Applications granted (Counterclaim)(Arrears of wages) ; Counterclaim ($17,995.00) ; Arrears of wages and holiday pay ($9,585.60) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Amaltal Fishing Company Ltd v Morunga [2002] 1 ERNZ 692;Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Greenwich & Associates Employment Agency & Complete Fitness Centre) [1983] ACJ 965 ; (1983) ERNZ Sel Cas 95;Honda NZ Ltd v NZ (with exceptions) Shipwrights etc Union [1990] 3 NZILR 23 ; [1991] 1 NZLR 392 ; (1990) 3 NZELC 98,130 ; (1990) ERNZ Sel Cas 855;Wellington Road Transport etc IUOW v Fletcher Construction Co Ltd (1983) ERNZ Sel Cas 59; [1983] ACJ 653 |
| Number of Pages | 26 |
| PDF File Link: | aa 512_10.pdf [pdf 130 KB] |