| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 108 |
| Hearing date | 12 Jul 2011 |
| Determination date | 27 July 2011 |
| Member | P Cheyne |
| Representation | P Shaw ; R Gibson |
| Location | Christchurch |
| Parties | McNair v Beauty Sense Ltd |
| Summary | ARREARS OF COMMISSION – Applicant sought unpaid commissions – Applicant and respondent Director (“B”) disagreed on whether applicant promised commission – Applicant claimed received proposed employment agreement before commencement which contained no provision for ongoing commissions but expected personalised agreement when started – Applicant provided unsigned employment agreement that did not name applicant but included references which indicated it had been amended to reflect applicant’s position – Applicant claimed printed agreement off respondent computer system as misplaced agreement originally sent – B provided unsigned employment agreement that named applicant but included page not relevant to applicant’s employment – B claimed could not find signed employment agreement – B claimed provided employment agreement duplicate of signed one – Authority found evidence deeply unsatisfactory – Found discussions between applicant and B on ongoing commissions never reached point of agreement – No arrears of commission – ARREARS OF WAGES – Applicant claimed not paid whole of agreed salary increase – Applicant claimed respondent reduced KiwiSaver contribution without authorisation – B reduced KiwiSaver contribution when respondent no longer received tax credit – Found not open to respondent to reduce level of contribution without applicant’s agreement as part of contractual bargain – Found applicant entitled to arrears of KiwiSaver contributions – Applicant and B discussed salary increase after applicant offered national role – Applicant claimed B said would increase salary next year – B claimed no agreement reached – Applicant attended performance appraisal meeting with B and respondent Chief Executive Officer (“S”) – Applicant claimed told would receive increased salary but half of what B first said – Applicant claimed more likely agreement reached over salary increase when first discussed with B – Authority preferred applicant’s evidence – Found agreement in place regarding salary when applicant and B discussed new responsibilities – Found arrears of wages due and owing – UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed redundancy was sham and applicant not consulted before final decision announced – Applicant discovered letter criticising work performance – Applicant contacted B regarding letter and B downplayed letter – Respondent hired new Account Manager (“N”) – Applicant moved out of office into room with printer and fax machine and was often interrupted – B discussed making applicant’s position redundant with S – Applicant attended meeting with B and S for unknown reason – Applicant given letter stating that position made redundant – B and S claimed letter only proposal and no final decision made at meeting and applicant given opportunity to propose alternatives – B initially declined request to pay notice period but later agreed – Found B did not consult with applicant – Found B announced final decision when gave letter to applicant – Found applicant given notice of dismissal at meeting – Found no plan to later dismiss applicant as result of hiring N – Found no intention to dismiss applicant from B’s letter criticising applicant’s performance – Found redundancy based on commercial reasons – REMEDIES – No contributory conduct – Found applicant offered employment by R – One week’s reimbursement of lost wages appropriate – Found applicant not entitled to compensation based on distress arising from loss of position or B’s failure to honour salary increase – Found applicant’s view that dismissal for ulterior purpose due to respondent’s failure to consult with applicant – Found applicant’s view caused considerable upset – $7,500 compensation appropriate – Leave reserved in case of difficulty with quantum – Account Manager |
| Result | Application granted (arrears of wages)(unjustified dismissal) ; Arrears of wages (quantum to be determined) ; Arrears of KiwiSaver contribution (2% from date respondent reduced employer contribution) ; Reimbursement of lost wages (one week) ; Compensation for humiliation etc ($7,500) ; Application dismissed (arrears of commission) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(4)(e);ERA s4(1A)(b);ERA s4(1A)(c);ERA s128(2);Taxation (Urgent Measures and Annual Rates Act 2008) s53 |
| Cases Cited | Cammish v Parliamentary Service [1996] ERNZ 404 |
| Number of Pages | 17 |
| PDF File Link: | 2011_NZERA_Christchurch_108.pdf [pdf 50 KB] |