| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 199 |
| Hearing date | 23 Aug 2011 |
| Determination date | 06 December 2011 |
| Member | G J Wood |
| Representation | B Howes ; J Souness |
| Location | Wellington |
| Parties | Howes v Bon Ton Ltd |
| Summary | JURISDICTION – Whether employee or independent contractor - Parties discussed applicant’s job description and drafted employment agreement – Found applicant was employee when started managerial work – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – Failure of respondent’s Auckland brothel had significant negative impact on parties’ relationship – Authority found as result of financial pressures and respondent principal’s (“S”) injury S demanded more from applicant – Found parties disagreed about personal matters but did not amount to major breaches of parties’ employment relationship – Found S’s demands not so unreasonable applicant should not be expected to put up with them - Applicant claimed worked over 70 hours per week - Nature of brothel business that applicant required to work inconsistent hours - S proposed would return to work at Wellington brothel until found new premises for Auckland brothel – Applicant did not want to work at same workplace as S and took two weeks’ leave – Applicant resigned – Applicant claimed resignation largely due to excessive hours required to work - Found applicant resigned as did not want to deal with S any more – Found applicant did not attempt to formally resolve issues with S before resignation – Found respondent hired person to cover for applicant some nights greatly reducing pressure on applicant – Found no serious breach of duty by respondent – No dismissal - ARREARS OF WAGES AND HOLIDAY PAY – RECOVERY OF MONIES - Applicant sought arrears of wages, arrears of holiday pay and reimbursement of petrol costs – Respondent failed to deduct Kiwi Saver contributions and student loan payment from wages – Found applicant entitled to $1,077 arrears of wages – Found applicant required to at least answer phone on public holidays and travel to workplace if necessary – Found applicant entitled to be paid for nine public holidays at rate of time and half and be given day off in lieu – Found respondent failed to pay applicant outstanding holiday pay when applicant resigned - Found applicant entitled to $1,825 for public holidays worked and $973 unpaid holiday pay outstanding when employment ended - Applicant used own car to take employees to offsite appointments – Found parties did not agree applicant’s petrol costs would be reimbursed and applicant paid when made mileage claim – Respondent paid applicant $1,000 recorded as bonus in respondent’s records but claimed payment was to cover holiday pay and other financial issues – Found $1,000 intended to be payment towards residual monies owing to applicant – Found applicant entitled to remaining balance of $2,877 arrears of wages and holiday pay - Manager |
| Result | Applications granted (jurisdiction and arrears of wages and holiday pay) ; Arrears of wages and holiday pay ($2,877.10) ; Applications dismissed (unjustified dismissal and recovery of monies) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168;Howes v Bon Ton Ltd unreported, G Wood, 15 November 2010, WA 183/10;Wellington, Taranaki and Marlborough Clerical Etc IUOW v Greenwich (T/A Greenwich and Associates Employment Agency and Complete Fitness Centre) [1983] ACJ 965 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Wellington_199.pdf [pdf 47 KB] |