The Employment Relations Authority has upheld a personal
grievance for a constructive dismissal.
The employee was paid irregularly and when he was paid, it was not the
full amount he was due. After putting up
with this for some time he eventually told his boss that he could not continue
with the situation if he was not being paid properly. He therefore resigned. This is a clear case of constructive dismissal,
because failing to pay an employee is a fundamental breach of the employer’s
obligations.
The ERA awarded short paid wages of $46,550, unpaid
holiday pay of $7,200, unpaid Kiwisaver of $1,984, plus compensation for hurt
and humiliation of $23,000 and costs of $6,000.
As the reason for underpayment and non-payment of wages
was the poor financial position of the employer it is doubtful whether the
employee will see anything from the employer by way of payment. However, he
could bring a claim against the director personally if the director was
involved in the non-payment of the wages.
That will enable the employee to get access to the director’s personal
assets, rather than those of the company.
Alan
Knowsley
Employment
Lawyer Wellington
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