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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22895
Experience:  38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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I'd like to explain my situation and ask for an advise what

Customer Question

Dear Sir or Madam,
I'd like to explain my situation and ask for an advise what I should do. I've been working for this company for last 15 years as a bookkeeper and Office Manager just in afternoons from 3-7pm weekdays for $765.00 gross per week. They opened another retail store 3.5 years ago outside Auckland in one of Coromandel tourist destination that operates from mid September to mid May which I took over all the work required and I wasn't offered any extra pay. I wanted to help them to established the business. Last year in June they sold out the Auckland business and verbally I was promised that I will continue working for them. I've never been given written contract or any employment letter or job description since day 1. After 15 years being employed in the company I trusted the owner. As the remained business was in Coromandel Peninsula they decided to close the Auckland office to reduce the costs and they asked me to work from home. They were giving me the documents by mail or handing over to me and it was fine until 4 months ago when they asked me that for them it would be better if I give them gst invoices for my services. I said that it's not in my interest as I have to register a company just to service their business and creating more work and expenses for me. As the work was reduced we agreed verbally the wage rate to be hourly at $35.00/h. Since 30.05.16 I started writing down my hours. As they didn't have enough money in the bank they asked me to continue with my work until they sell their private house. A month ago they asked me to give all the documents required for final reports to their CA accountant. I prepared everything and handed over. Also they said - as the work is less now we are going to do data entries and prepare the gst for 28.06.16. As i was doing all on-line banking they changed the password ***** the email login details and withdraw me from the access without any notice. When I asked why did they do that - I was advised that soon they are going to give me the passwords and login details because they thought someone hacked their email. Their CA accountant told me that they mentioned to her that they would like to sack my position and hire someone local from Coromandel to do the work for them for far less. When I heard this I texted them to check if my position was terminated they said you know we mentioned to you that we can't pay you anymore your salary and it's hard for us to continue paying you. I said we agreed for $35.00/h? Their reply was that they mentioned to me that the owners wife will do the work until they open the business for the season in September and than they might need a little work from my side but they can't promise anything at present. I don't know what to do so I texted them how much they owe me + my holiday + I asked for 2 weeks notice to be given to me and with 2 weeks paid notice or compensation if they don't want me to work for them for the notice period. Instead of written notice I received a letter to return all their possessions and records. They sent the CA accountant to collect them. He texted me that he can pay me on 26th of September, a month after. On the 26th of September I reminded him that I expect my pay to be processed and he said that he has problems with floods and sleeping in the car. He arranged to meet with me today and today he texted me that his brother is in hospital and he can't see me. He can't see me until Monday next week. He wants to discuss with me what is fair. I don't know what to do anymore.
JA: Since estate law varies from place to place, can you tell me what state this is in?
Customer: New Zealand
JA: Has anything been filed or reported?
Customer: No
JA: Anything else you want the lawyer to know before I connect you?
Customer: i think he has enough information
Submitted: 10 months ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 10 months ago.

I am reading this now

Expert:  Chris The Lawyer replied 10 months ago.

The situation is that you have likely been unfairly dismissed by what is called constructive dismissal. They must pay you your final pay and holiday pay and if they do not pay these, then you can make a claim against them for a personal grievance. A personal grievance claim should be set out in a letter which sets out all of the issues, and you should ask them for seven days to reply. If they don't reply then the next step is to contact the mediators at the Department of labour and ask for a mediation to resolve the issue. The fact that they have not given you a written employment contract will also be an issue because that is illegal. Some people get a lawyer to help them with the personal grievance letter and the mediation, but it is not essential. In this situation you are quite likely to get an award because of the very poor procedure used and the failure to have a written contract.

Customer: replied 10 months ago.
This is the letter that I received from them on 02.09.16 when I asked for notice. Nothing since than until I started to ask my payment on 26th of Sep:To Liljana Tomova TriBeCa Limited
29 Pye Place, Hot Water Beach
02/09/2016Dear Lily,
RE: Unpaid work and holiday pay owing to you
As per our conversation, I understand that according to your calculations TriBeCa owes you 102.25 hours of $35 per hour, for the period from 29th May 2016. Also, according to your records there is unpaid holiday pay, owing to you of $5532.91 and you would like to be paid a compensation for termination of your employment of $1085 net.
Please note that ever since the TriBeCa operations have downsized and moved away from Auckland and to Hot Water Beach last year, we have not had access to any of the PAYE schedules and had full trust in you to record everything and file everything properly and on time.
We would now require that you release all TriBeCa records that are in your possession back to us, as it is you duty as employee of TriBeCa Limited. Please also provide all the PAYE schedules that you have filed with the IRD detailing PAYE paid, as well your timesheets from 29th May 2016 detailing the work you have done in the 102.25 hours claimed.
I will be very happy to pay whatever is owed to you, but I do need you provide me with the necessary records. Thank you for your help in this matter, so we can finalise this issue.Kind Regards,
Mark WalynetzDirector
TriBeCa Limited
Customer: replied 10 months ago.
For your information I gave them back all the documents, records and I emailed them my detailed payslips. They made me work from home because they didn't want to continue paying for office and storage rent. They've could ask any day to look at any records if they wanted to. I didn't hide anything. I provided the paye filings and payments and all other documents. I did everything what was asked from me.
Expert:  Chris The Lawyer replied 10 months ago.

So the next step is to give a deadline and then to bring the personal grievance claim and go to mediation. They have clearly handled this incorrectly and you can claim damages as well as the money they accept they owe you

Customer: replied 10 months ago.
Thanks Chris, can I know how much damages I can claim?
Expert:  Chris The Lawyer replied 10 months ago.

It isnt usually a large amount, but say $1000 for the failure to provide a written contract and up to about $5000 for the poor process and unfair dismissal

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