A Tauranga nanny has won $4121 in compensation and reimbursed wages after being constructively dismissed.
This week the Employment Relations Authority ruled in favour of Nicole Boreham who had been working as a nanny for Leanne Jamieson from February to April this year.
The employment ended when Ms Boreham said she could not keep working unless Ms Jamieson paid her in full for the hours she worked. Over an eight-week period Ms Boreham was paid about two-thirds of the wages due to her.
Authority member Robin Arthur said in the determination that the employment was arranged by home-based childcare agency Quality Kidz and Ms Jamieson had originally blamed the agency for the shortfall in payment, saying the company had not claimed and passed on the right level of money due under a childcare subsidy provided by Work and Income.
She later told Ms Boreham that she had deducted wages, claiming Ms Boreham had not performed her duties correctly.
The determination said Ms Boreham had raised a personal grievance alleging she was constructively dismissed but Ms Jamieson replied through email that the arrangement was "casual babysitting" and she was entitled to end it as a 90-day trial "situation".
On April 2, Ms Jamieson told Ms Boreham she was entitled to deduct money from Ms Boreham's wages due to lateness. She criticised the quality of Ms Boreham's care for her children and alleged Ms Boreham had unauthorised visitors at Ms Jamieson's home.
The same day, Ms Boreham's father sent Ms Jamieson an email on his daughter's behalf stating Ms Boreham was unable to work for Ms Jamieson until Ms Boreham could be assured of being paid.
Mr Arthur concluded Ms Boreham's refusal to work in the circumstances was not a resignation but a predictable response to Ms Jamieson's conduct.
"In that sense, at law, Ms Boreham's apparent resignation was compelled by the unlawful conduct of her employer such that it amounted to a constructive dismissal."
Mr Arthur said as a matter of credibility, he did not accept Ms Jamieson's reasons for wage deductions.
He said if Ms Jamieson's criticism of Ms Boreham's care for her children was true, Ms Boreham would have been warned about it, not have it raised belatedly as rationale for not paying Ms Boreham for the hours she had worked.
Mr Arthur said the 90-day trial period did not apply because no written employment agreement containing such a trial period provision was completed.
The Authority ordered Ms Jamieson pay Ms Boreham $2726.75 for personal grievance plus another $1395.10 comprising of $1052.78 as wage arrears, $248.96 as holiday pay, and $93.36 as her employer contribution for Kiwisaver.