| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 238/10 |
| Hearing date | 15 Dec 2010 |
| Determination date | 23 December 2010 |
| Member | J Crichton |
| Representation | K Dalziel ; J Henderson |
| Location | Christchurch |
| Parties | Baker and Anor v Henderson Advisory Services Ltd |
| Other Parties | Robinson |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY - Applicants not paid for three months - As a consequence of non payment applicants terminated employment with respondent and commenced alternative employment - Respondent accepted applicants’ owed unpaid wages, unpaid commission, unpaid expenses and cash value of unpaid Kiwisaver contributions - Based on parties’ submissions Authority determined amounts owed to applicants - Respondent to pay applicants sums specified by Authority - Interest awarded - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicants’ claimed resignations were actually constructive dismissals - Authority found respondent ceased paying applicants wages and other entitlements applicants entitled to under employment agreements - Found failure to pay was breach of duty owed by respondent - Found breach caused applicants’ resignations - Found breach of sufficient seriousness that applicants’ resignations not just foreseeable but inevitable - Found applicants unjustifiably constructively dismissed - Applicants also claimed unjustifiably disadvantaged - Applicants claimed failure to pay salary and other entitlements caused unjustified disadvantage - Claimed respondent’s failure to maintain professional indemnity insurance placed applicants’ at risk of claims in event of loss by client - Found fair and good employer would maintain professional indemnity insurance for senior staff in respondent’s sort of business - Found while failure to maintain insurance only contingent risk was nonetheless of reasonable and genuine concern to applicants - Found applicants unjustifiably disadvantaged - Applicants claimed failure to pay salary and other entitlements caused unjustified disadvantage - Found failure to make payments pursuant to employment agreements on which applicants relied for daily living expenses caused disadvantage - Remedies - No contributory conduct - Three months’ reimbursement of lost wages appropriate for each applicant - Authority found global award of compensation for both unjustified dismissal and disadvantage appropriate - Applicants provided evidence of suffering and distress caused by grievances - $10,000 compensation appropriate for each applicant - PENALTY - Applicants sought penalties for various breaches made by respondent - Respondent to pay $5,000 penalty to first applicant - Respondent to pay $5,000 penalty to second applicant - In event respondent met all obligations in accordance with payment schedule penalties to be waived - Financial Planners |
| Result | Applications granted ; Arrears of wages and holiday pay ($34,929.29)(Applicant 1)($19,771.70)(Applicant 2) ; Interest (4.5%) ; Reimbursement of lost wages ($14,000)(Applicant 1)($9,000)(Applicant 2) ; Compensation for humiliation etc ($10,000)(Applicant 1)(Applicant 2) ; Penalty ($10,000)($5,000 payable to Applicant 1)($5,000 payable to Applicant 2) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s128;ERA s136(2) |
| Cases Cited | Rock Refrigeration Ltd v Jones [1997] 1 All ER 1 |
| Number of Pages | 8 |
| PDF File Link: | ca 238_10.pdf [pdf 29 KB] |