IN THE EMPLOYMENT RELATIONS AUTHORITY
CHRISTCHURCH
[2016] NZERA Christchurch 113
5561058

BETWEEN

AMANDA McNOE
Applicant

AND

O’NEILL EARTHWORKS
LIMITED
Respondent

Member of Authority:

Helen Doyle

Representatives:

Tim Jackson and Kelly Beazley, Counsel for Applicant
No appearance for Respondent

Investigation Meeting:

12 July 2016 at Timaru

Oral Indication:

12 July 2016

Submissions Received:

At the investigation meeting from applicant

Date of Determination:

14 July 2016

DETERMINATION OF THE AUTHORITY

A

Amanda McNoe was employed by O’Neill Earthworks Limited.

B

Amanda McNoe was unjustifiably dismissed from her employment
on 13 January 2015.

C

O’Neill Earthworks Limited is ordered to pay the following
amounts:
(i)

The sum of $798 gross being reimbursement of unpaid

wages.
(ii)

The sum of $343.04 gross being holiday pay.

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(iii)

Lost wages in the sum of $4160 gross under s 123(1)(b) of
the Employment Relations Act 2000.

(iv)

Compensation in the sum of $6000 without deduction under
s 123(1)(c)(i) of the Employment Relations Act 2000.

C

O’Neill Earthworks Limited is to pay to Amanda McNoe costs in
the sum of $1200 together with the filing fee of $71.56.

Employment relationship problem
[1]

Amanda McNoe says that she was employed by O’Neill Earthworks Limited

(O’Neill Earthworks) from 13 October 2014 to 13 January 2015 as an administration
assistant. Mrs McNoe says that she was unjustifiably dismissed on 13 January 2015.
[2]

Mrs McNoe’s husband, Aaron McNoe, was employed by O’Neill Earthworks

since 2 December 2013.

He also says that he was unjustifiably dismissed.

By

agreement, the Authority investigated both employment relationship problems
together on 12 July 2016.
[3]

O’Neill Earthworks has only participated in the Authority process in a limited

way although the parties have attended mediation.
[4]

The sole director of O’Neill Earthworks is Daniel O’Neill. His sister Anna

Baker represented Mr O’Neill during a telephone conference with the Authority on
26 January 2016. Although statements of problem had been lodged on behalf of
Mr and Mrs McNoe on 14 October 2015 no statement in reply had been received by
O’Neill Limited to either matter.
[5]

During the telephone conference, the Authority scheduled for a statement in

reply to be lodged and served and also set the matter down for an investigation
meeting on 12 July 2016 in Timaru.

The Authority scheduled the lodging of

statements of evidence and relevant documents.
[6]

A document which was not in the prescribed form of a statement in reply was

received from Mr O’Neill but only in relation to Mr McNoe’s claim. There has never

 3
been any written response to Mrs McNoe’s claim. No statements of evidence were
received for either matter.
[7]

The Authority was advised that an application by the Inland Revenue

Department to place O’Neill Earthworks into liquidation was heard on 13 June 2016.
The application was adjourned until 1 August 2016.
[8]

An Authority officer advised Mr O’Neill on 1 July 2016 that the investigation

meeting for 12 July would be proceeding as scheduled. The Authority officer noted
that O’Neill Earthworks had not lodged statements of evidence but that did not mean
that the meeting would not proceed and Mr O’Neill could still present evidence on the
day.
[9]

On 1 July 2016, Ms Baker asked the Authority officer if the date for the

meeting could be changed as Mr O’Neill had just started a new job on a ski field
which was not close to Timaru. The Authority officer advised Ms Baker that the
investigation meeting would not be rescheduled.
[10]

A subsequent request was received that Mr O’Neill be connected by telephone

but before the Authority could deal with that request, Ms Baker advised on 8 July that
their father was very unwell and applied for an adjournment.
[11]

The Authority heard from Ms Baker and Mr Jackson on 11 July 2016 on the

adjournment application.
Jackson.

The application for adjournment was opposed by Mr

The Authority had to weigh a number of different interests in considering

the adjournment. Ultimately, the Authority was not minded to grant the adjournment.
Ms Baker was advised that the process in the Authority was relatively informal and
that Mr O’Neill’s attendance would only be required for about two hours. There was
also a concern that the company could be placed into liquidation on 1 August and that
it was unclear, if the matter was to be adjourned, when anoter suitable date could be
given.
[12]

On 11 July 2016, Mr O’Neill advised the Authority that he would not be

attending the investigation meeting. The Authority therefore heard from Mrs McNoe
and from a witness who had been served with a witness summons, Michelle Cogger.
Mr McNoe’s evidence was also relevant to the employment relationship problem the
Authority was investigating for Mrs McNoe.

 4
The issues
[13]

The Authority needs to determine the following issues:
(a)

Was Mrs McNoe an employee of O’Neill Earthworks?

(b)

If Mrs McNoe was an employee of O’Neill Earthworks, was she
dismissed?

(c)

If Mrs McNoe was dismissed then was her dismissal unjustified?

(d)

If Mrs McNoe was unjustifiably dismissed, what remedies is she
entitled to?

Was Mrs McNoe an employee of O’Neill Earthworks?
[14]

There was no written record of Mrs McNoe’s employment. She did not have

an employment agreement and said she was paid in cash. Ms Cogger’s evidence was
therefore important because she had been contracted by O’Neill Earthworks to
undertake its accounts, GST, PAYE and payment of wages.
[15]

Ms Cogger said that she was unaware that Mrs McNoe was an employee of

the company. She said that she did see some timesheets from Mrs McNoe although
not a great number. Ms Cogger said that she questioned Mr O’Neill about Mrs
McNoe when she saw her timesheets and he responded don’t worry about it. Ms
Cogger said that there was no notice of Mrs McNoe on the payroll and PAYE had not
been deducted on her behalf from any payments made to the best of her knowledge.
[16]

Mrs McNoe’s evidence as to how she came to work for O’Neill Earthworks

was supported by Mr McNoe’s evidence. Mr McNoe said that he was undertaking a
considerable amount of administrative work at home and was working into the night.
He was preparing quotes for jobs and undertaking other paperwork. Mrs McNoe
started assisting Mr McNoe with the paperwork at a time when she was working part
time in another role.
[17]

Mr McNoe said that he talked to Mr O’Neill about employing an

administration assistant for him and the company or employing Mrs McNoe. On 28
September 2014 Mrs McNoe went with her husband to see Mr O’Neill about
employment as an administration assistant. Mrs McNoe was willing to take the role

 5
on but only if she could work between the hours of 9am and 1pm Monday to Friday.
Mrs McNoe said that Mr O’Neill agreed to employ her on a part- time basis and she
was to work for 20 hours a week at $16 an hour gross which was the hourly rate she
was receiving at her other employment. Mrs McNoe said that it was agreed that she
would resign from her current employment with ProLife Foods Pty (Prolife) and there
was discussion about the two week notice period that company required. Mrs McNoe
said that her final day at Prolife was 10 October 2014.

Mrs McNoe had been

employed by Prolife since 19 November 2012.
[18]

It was agreed Mrs McNoe said that she would work from her home address as

O’Neill Earthworks did not have an office in its yard and Ms Cogger and Mr O’Neill
both worked from their respective homes.
[19]

On 13 October 2014, Mrs McNoe said that she officially commenced working

for O’Neill Earthworks and her duties were generally administrative. Mrs McNoe
said that she would receive calls from Mr O’Neill and Mr McNoe wanting
information. Ms McNoe gave me examples of the type of work that she undertook
from the general list set out below:
(a)

Creating a health and safety manual;

(b)

Creating spreadsheets for job costings;

(c)

Preparation and typing of quotes for clients;

(d)

Creating a quality assurance manual;

(e)

Tidying and organising of the workshop, staff rooms and toilets;

(f)

Typing memos to staff members;

(g)

Erecting signs on different job sites;

(h)

Photocopying daily timesheets for employees;

(i)

Maintenance records; and

(j)

Pilot vehicle occasionally.

 6
[20]

Mrs McNoe said that she gave Mr O’Neill a copy of her personal information

including bank account details, IRD number, tax code form, KiwiSaver form and a
copy of her driver’s licence on 20 October 2014. Ms Cogger said that she never saw
these documents. Mr O’Neill advised Mrs McNoe when she raised a concern about
being paid in cash that she had missed the cut off point for Ms Cogger as pay clerk
and that he would pay her in cash for that fortnight.
[21]

On 24 October 2014, Mr O’Neill paid Mrs McNoe by way of Mr McNoe $640

cash for the weeks ending 19 and 26 October.

Mrs McNoe said that she never

received a payslip and continued to be paid in cash. Mrs McNoe said she would
complete a timesheet every day and would send them together with the other
employees’ timesheets to Mr O’Neill on the understanding they would be forwarded
on to Ms Cogger.
[22]

Mr and Mrs McNoe said that they discussed with Mr O’Neill working the non-

statutory holidays to 5 January 2015 when Mr O’Neill would be away and then taking
two weeks’ annual leave from 14 January 2015.
[23]

On the balance of probabilities I find it is more likely than not that Mrs

McNoe undertook work for O’Neill Earthworks. I am unclear why Mr O’Neill did
not treat Mrs McNoe in the same way as he did his other employees. I accept Mrs
McNoe expected to be treated like other O’Neill Earthworks employees. I have
considered whether it was possible that Mrs McNoe was engaged as a contractor.
Although no tax was deducted from payments made to her in cash, I think that is less
likely. Ms Cogger invoiced the company for her work and also undertook other work
as a contractor or an employee. Mrs McNoe completed timesheets as did other
employees and had resigned her other employment to work for O’Neill Earthworks.
She also worked 20 hours per week as set hours. Mrs McNoe considered herself
under the supervision of her husband but undertook direction from Mr O’Neill as
well.
Was Mrs McNoe dismissed?
[24]

On 12 January 2015, Mrs McNoe was told by her husband that Mr O’Neill had

told him he had two choices; either leave the company as it could not afford to pay
both him and Mr O’Neill or to buy into the company.

 7
[25]

The following day, 13 January 2015, Mr McNoe met with Mr O’Neill to drop

some plans off. Mrs McNoe said she continued to work on some job costings that she
wished to finish before the planned annual leave was taken.
[26]

Mr McNoe returned home and told Mrs McNoe that they needed to talk.

Mr McNoe advised Mrs McNoe that her employment had been terminated and that
Mr O’Neill had asked him to tell her.
[27]

I find that Mrs McNoe was dismissed from her employment with O’Neill

Earthworks on 13 January 2015. A personal grievance of unjustified dismissal was
raised on 20 March 2015 with Mr O’Neill within the statutory timeframe.
Was the dismissal unjustified?
[28]

Section 103A of the Act refers to the test of justification. The question of

whether a dismissal was justifiable must be determined on an objective basis by the
Authority. In considering whether the dismissal was justifiable, the Authority must
determine whether the employer’s actions and how the employer acted were what a
fair and reasonable employer could have done in all the circumstances at the time the
dismissal occurred.
[29]

There are factors contained in s 103A(3) with respect to procedural fairness

that the Authority must consider. A fair and reasonable employer will be expected to
act in accordance with good faith.
[30]

The dismissal was not what a fair and reasonable employer could have done in

the circumstances at the time the dismissal occurred and was without any procedural
fairness. There was no direct communication between Mr O’Neill and Mrs McNoe
about her continued employment. She was never given any reason for her termination
but understood that it may have been because of financial concerns. Mrs McNoe was
not consulted about these concerns, no documentation was provided to her and she
was not heard at all before the decision to dismiss was made..
[31]

As I indicated orally I find that Mrs McNoe was unjustifiably dismissed from

her employment with O’Neill Earthworks Limited and she has a personal grievance.
Mrs McNoe is entitled to a consideration of remedies.

 8
What remedies should be awarded?
[32]

Mrs McNoe clarified that she is seeking unpaid wages for the period from

28 December 2014 to 13 January 2015 including reimbursement of a $30 shortfall in
wages paid. The claim for lost Kiwisaver benefits is not pursued. Mrs McNoe also
seeks holiday pay, three months’ lost earnings and compensation for loss of dignity
and humiliation.
Unpaid wages
[33]

Mrs McNoe was short paid the sum of $30 for the fortnightly pay period

ending 28 December 2014. Mrs McNoe said that she received nothing for the week
ending 2 January 2015 or for the week ending 9 January 2015. There were two
further days on 12 and 13 January 2015 which were unpaid. 13 January 2015 was the
date of dismissal.
[34]

I find that Mrs McNoe is entitled to reimbursement for the sum short paid of

$30 and for two weeks and two days wages worked but not paid. I have assessed the
daily rate of payment on the basis of wages of $320 gross per week divided by five
which is $64.00.
[35]

I have added together the sum of $30 plus $640 plus $128 which is the sum of

$798 gross.
[36]

I order O’Neill Earthworks Limited to pay to Amanda McNoe the sum of $798

gross being reimbursement of unpaid wages.
Holiday pay
[37]

Mrs McNoe has not received holiday pay and did not take any holidays. She

was employed for 13 weeks and 2 days. Her gross earnings over that period should
have been $320 x 13 plus 2 days which equals $4288. Eight percent of gross earnings
equals $343.04.
[38]

I order O’Neill Earthworks Limited to pay to Amanda McNoe the sum of

$343.04 gross being holiday pay.

 9
Lost earnings
[39]

Mrs McNoe gave evidence that she looked for new positions on Trade Me and

job seekers and in newspapers and on supermarket noticeboards. Mrs McNoe was
unable to obtain alternative employment for the part-time hours that would enable her
to continue to look after her four children.
[40]

I am satisfied from Mrs McNoe’s evidence that she did attempt to find other

employment but was unsuccessful.

I am not minded to award more than three

months’ lost wages in the circumstances although her unemployment continued
beyond that period. I find that Mrs McNoe is entitled to reimbursement of lost wages
for a period of three months from 13 January to 14 April 2015 in the sum of $4160
gross.
[41]

I order O’Neill Earthworks Limited to pay to Amanda McNoe the sum of

$4160 gross being reimbursement of lost wages pursuant to s 123(1)(b) of the Act.
Compensation
[42]

I accept that Mrs McNoe was humiliated by the manner of her dismissal and

that she struggled to find other suitable employment. She also had to establish that
she was an employee. Mrs McNoe also spoke of the humiliation of having to endure
people in the community questioning her about what had happened.
[43]

As a result of the termination of both her and Mr McNoe before the planned

holiday, Mrs McNoe had to advise the children that there would not be a holiday that
year. Mrs McNoe also expressed the concern about having her employment being
like a joke to Mr O’Neill in the manner of her employment and the way she was
dismissed.
[44]

A suitable award in all the circumstances I find is the sum of $6,000.

[45]

I order O’Neill Earthworks Limited to pay to Amanda McNoe the sum of

$6,000 without deduction being compensation under s 123(1)(c)(i) of the Act.
Contribution
[46]

No issues of contribution arise.

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Costs
[47]

This was not a complicated matter. The daily tariff in the Authority is $3,500.

The matters involving Mr and Mrs McNoe were able to be dealt with within a shorter
timeframe of about two hours. A suitable award of costs on this matter I find is the
sum of $1200 together with reimbursement of the filing fee of $71.56.
[48]

I order O’Neill Earthworks Limited to pay to Amanda McNoe costs in the sum

of $1,200 together with the filing fee of $71.56.

Helen Doyle
Member of the Employment Relations Authority