| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 118 |
| Hearing date | 2 Mar 2011 |
| Determination date | 29 March 2011 |
| Member | A Dumbleton |
| Representation | K Marshall ; K Bilkey |
| Location | Auckland |
| Parties | Christie v Browns Ltd |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY – Applicant employed as salesperson on purported fixed term contract - Applicant sought payment of bonus payment plus associated holiday pay - Applicant’s employment agreement (“EA”) contained clause providing for payment of two dollars per hour bonus for working required rosters over fixed term period – Applicant claimed worked all required rosters and therefore entitled to bonus when employment ended – Respondent claimed while applicant physically worked all hours did not discharge duty to keep property of store secure and had attempted to dishonestly acquire pair of jeans – Respondent believed entitled to decline to pay bonus on that basis – Authority found was dispute as to interpretation of clause in EA – Found bonus payment not discretionary in sense optional whether respondent paid it or not - Found payment of bonus clearly expressed to be dependent on event occurring – Found as event occurred applicant became entitled to bonus payment – Found if respondent suspected misconduct were other ways to deal with it than declining to pay bonus - Respondent to pay applicant bonus plus holiday pay on that amount - Interest awarded – PENALTY – Applicant sought penalty for breach of EA – Found failure to pay bonus was breach of EA – However, found breach based on misunderstanding of clause and genuine belief applicant’s conduct disentitled her to bonus – Found penalty not warranted in circumstances - Applicant sought penalty for failure to pay holiday pay on bonus – Found while was breach of Holidays Act 2003 not real or substantial wrong in case - Found penalty not warranted - Applicant sought penalty for breach of duty of good faith – Found while contractual obligation to pay bonus survived end of employment relationship duty of good faith did not – Found respondent’s questioning of applicant’s honesty after relationship ended not therefore breach of duty of good faith – Penalty application declined – COUNTERCLAIM – Recovery of monies – Respondent claimed overpaid applicant as paid her for five public holidays not entitled to – EA stated applicant not eligible for public holidays during fixed term contract and public holidays deemed to be fixed term contract – Authority found way EA drafted created confusion and was unclear what was meant by saying public holidays were fixed term - Found in practice applicant continuously employed for period therefore entitled to payments received for public holidays within that period – Found applicant had not been overpaid – Counterclaim dismissed - COSTS – Length of investigation meeting not specified – Found applicant entitled to contribution to costs – Respondent to pay applicant $1,650 contribution to costs - Salesperson |
| Result | Application granted (arrears of wages)(holiday pay) ; Arrears of wages ($961) ; Holiday pay ($76.88) ; Interest (4.5%) ; Application dismissed (penalty) ; Counterclaim dismissed ; Costs in favour of applicant ($1,650) |
| Main Category | Arrears |
| Statutes | ERA s4;ERA s66;ERA s134;Holidays Act 2003 s46;Holidays Act 2003 s49;Holidays Act 2003 s75(1)(b) |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Auckland_118.pdf [pdf 33 KB] |