| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 33 |
| Hearing date | 3 Mar 2011 |
| Determination date | 04 March 2011 |
| Member | D Asher |
| Representation | B Laracey ; S Palmer |
| Location | Palmerston North |
| Parties | Swaysland v Hautapu Motors Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Applicant claimed suffered unjustified disadvantage when respondent unilaterally altered parties employment agreement to reduce amount of commission payable - Respondent claimed grievance raised out of time - Applicant advised that as used vehicle department continuing to trade at a loss and were concerns about his performance commission structure would be altered - Applicant raised concerns and proposed alternative package – Respondent claimed discussed applicant’s concerns with him but agreed did not respond in writing – Applicant’s representative wrote to respondent seeking reinstatement of original commission structure – Respondent replied stating did not accept any grievance raised within time - Applicant resigned – Applicant’s representative again wrote to respondent and stated had not raised personal grievance rather was making claim for financial restitution – Applicant changed representative – Nearly three years later applicant filed statement of problem alleging raised grievance within time and if not then exceptional circumstances existed such that should be allowed to raise grievance out of time – Authority found first letter to respondent did not amount to notice of raising alleged unjustified disadvantage grievance – Authority satisfied fair and reasonable employer would not have taken it as notice of raising grievance – Found applicant had not complied with relevant steps in employment agreement for raising grievance – Found grievance not raised within time - Found applicant did not instruct representative to raise grievance on his behalf - Found applicant required to make reasonable arrangements to have grievance raised by representative – Found no exceptional circumstances - ARREARS OF WAGES – Change in commission structure resulted in applicant’s remuneration decreasing by $2,500 - Authority found employment agreement did not provide for changes to commission structure as respondent claimed – Applicant’s evidence that received no notice of change and alternative proposal ignored accepted - Found respondent not entitled to vary employment agreement – Applicant entitled to be remunerated on basis of original employment agreement – Respondent to pay applicant $2,500 arrears of wages - PENALTY – Applicant sought penalty for breach of employment agreement by way of unilateral variation - Authority found importance of adhering to employment agreement obligations was fundamental to parties’ good faith obligations in context of employment relationship – Found breach was deliberate and sustained – Found breach caused significant harm to applicant – Found harm would not be fully put right as applicant had not claimed interest on monies owed - Found penalty would bring home to respondent that behaviour unacceptable and deter others - $1,000 penalty appropriate – Penalty to be shared between applicant and Crown - Used Vehicles Sales Manager |
| Result | Application dismissed (Raising personal grievance) ; Application granted (Arrears of wages)(Penalty) ; Arrears of wages ($2,500) ; Penalty ($1,000)($500 payable to Crown)($500 payable to applicant) ; Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA s115(b);ERA s136(2) |
| Cases Cited | Melville v Air New Zealand Ltd [2010] NZCA 563;Xu and Anor v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 7 |
| PDF File Link: | 2011_NZERA_Wellington_33.pdf [pdf 26 KB] |