| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 518/10 |
| Hearing date | 12 Jul 2010 |
| Determination date | 20 December 2010 |
| Member | R A Monaghan |
| Representation | P Cranney ; A Russell |
| Location | Auckland |
| Parties | Bishop and Ors v Waitemata District Health Board |
| Summary | RECOVERY OF MONIES – Applicants claimed respondent unlawfully deducted money from payments received from declaratory judgments of Employment Court (“EC”) – Deductions concerned shoe allowance paid during relevant period – Respondent argued shoe allowance was not payable when clothing allowance payable – respondent argued no deduction as took account of shoe allowance in method of calculating payable clothing allowance – Applicant’s disagreed with construction of collective employment agreements – Claimed was deduction and no valid or lawful set-off or abatement – Alternatively if respondent had valid claim was precluded under Limitation Act 1950 – Authority found shoe allowance was separate and independent allowance, payable in addition to clothing allowance – Found shoe allowance being paid at clinic during relevant period – Respondent also argued custom and practice that shoe allowance pad when clothing allowance paid – Found shoe allowance not payable in circumstances where civilian clothing allowance payable – Authority noted distinction between subtraction made as part of process of calculating wages and deduction made from wages payable – Found could be lawful deduction if for purposes of fixing correct entitlement but not if deduction was from wages already fixed – Found respondent made deduction from amount already fixed – Found deduction not authorised and breached Wages Protection Act – However, respondent not prevented from recovering overpayment using lawful means – Found counterclaim could not proceed as outside of time – Orders accordingly |
| Result | Orders accordingly ; Costs reserved |
| Main Category | Recovery of Monies |
| Statutes | Judicature Act 1908 s94A;Limitation Act 1950 s4;Limitation Act 1950 s4(1);Limitation Act 1950 s30;Wages Protection Act 1983 s4 |
| Cases Cited | NZ Harbours IUOW v Wellington Harbour Board [1986] ACJ 721;New Zealand Public Service Association v Waitemata District Health Board [2005] 1;ERNZ 253;New Zealand Public Service Association v Waitemata District Health Board, unreported, Shaw J, AC 56/07, 14 November 2007;Portia Developments Ltd v Taylor, unreported, Travis J, 9 Sept 1997, AC 100/97;The New Zealand Fire Service Commission v Warner & Ors [2010] ERNZ 290;Waitemata District Health Board v Ne Zealand Public Service Association, unreported, CA 118/05, 1 December 2006 |
| Number of Pages | 13 |
| PDF File Link: | aa 518_10.pdf [pdf 59 KB] |