| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 298 |
| Hearing date | 5 May 2011 |
| Determination date | 08 July 2011 |
| Member | R A Monaghan |
| Representation | M Moncur ; A du Plessis |
| Location | Auckland |
| Parties | Agreiter v Gino Ltd |
| Summary | ARREARS OF WAGES – Applicant sought $16,563 unpaid wages – Applicant claimed salary increased – Respondent denied increase – Authority found salary increased based on evidence from respondent’s accountant and applicant’s bank statements – Applicant claimed never paid for hours worked in excess of 40 per week – Found employment agreement provided to Authority missing hours of work and remuneration clauses – Found due to applicant paid by way of salary and no evidence to contrary applicant not entitled to additional payment for hours worked in excess of 40 per week – Applicant claimed respondent unlawfully made deductions from wages – Respondent claimed applicant’s salary payments reduced as overpaid – Found no evidence to support respondent’s claim – Respondent accountant disclosed total underpayment of $264 – Applicant conceded taking cash from till on occasion totalling $1,070 – Found no outstanding wages owed – ARREARS OF HOLIDAY PAY – Applicant sought $9,117 unpaid holiday pay – Found no evidence to suggest applicant did not work on all statutory holidays but one or took any paid annual leave – Respondent claimed leave payments incorporated in applicant’s wages – Found respondent’s claim not helpful as unlawful – Respondent claimed large deposits in applicant’s bank statements for holiday pay – Found no reference for payments and in any event taken into account in determining underpayment of wages – Found applicant entitled to $9,117 arrears of holiday pay – RECOVERY OF MONIES – Applicant sought reimbursement of $729 for bar bench and $1,800 for half-share of airline ticket – Applicant claimed purchased bench to replace broken one and produced receipt – Respondent claimed applicant responsible for broken bench and not authorised to make purchase – Found applicant not authorised to make purchase – Applicant claimed respondent agreed to pay half cost of airline ticket after applicant agreed to delay trip – Respondent denied arrangement – Respondent claimed applicant extended trip and thereby deserted job – Found no termination of employment relationship – Found no evidence of respondent refusing to pay – Found more likely than not agreement in place – Found applicant entitled to reimbursement of $1,800 – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed forced to resign due to uncertainty over remuneration – Found applicant’s sporadic remuneration amounted to breach of duty by respondent – Found reasonably foreseeable breach of duty would lead to applicant resigning – Found applicant’s resignation caused by breach of duty – Respondent claimed justifiable due to financial state of business – Found no evidence to support respondent’s claim and in any event not justifiable reason – Dismissal unjustified – REMEDIES – Found applicant not out of work as claimed – No reimbursement of lost remuneration – $2,000 compensation appropriate – PENALTY – Applicant claimed respondent did not produce pay slips when requested – Found requested pay slips did not amount to wage and time record – No order for penalty – GOOD FAITH – Found no analysis of which actions of respondent amounted to breach – No order for penalty – Duty Manager |
| Result | Application granted (arrears of holiday pay) (recovery of monies) (unjustified dismissal) ; Arrears of holiday pay ($9,117.50) ; Recovery of monies ($1,800) ; Compensation for humiliation etc ($2,000) ; Application dismissed (arrears of wages) (penalty) (good faith) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s4;ERA s4(1);ERA s4A;ERA s130;ERA s130(1);ERA s130(2);Holidays Act 2003 s28;Holidays Act 2003 s28(1);Holidays Act 2003 s28(4);Wages Protection Act 1983 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Offices IUOW [1994] ERNZ 168 |
| Number of Pages | 11 |
| PDF File Link: | 2011_NZERA_Auckland_298.pdf [pdf 31 KB] |