A claim by two South Otago farmers their former employee was
overpaid has been dismissed by the Employment Relations
AP and AW Hughes Ltd operates a farm near Balclutha and is
owned by Tony and Wayne Hughes.
They claimed their former employee, Rachel Johnstone, owed
the company various sums of money as a result of her leaving
A counter-claim made by Ms Johnstone that she was
unjustifiably dismissed also failedThe authority said Ms
Johnstone began working at the farm on June 1, 2011.
She took two weeks' annual leave at the end of July. She told
the authority she was given no choice, and claimed she and
another employee were approached by Tony Hughes and were told
they had to take the leave.
Tony Hughes said he accepted he approached the two and said
he asked when they might take their annual leave, following
advice given in the interviewing process that two weeks'
leave would normally be required before calving in late
On July 25, 2011, Ms Johnstone had a serious asthma attack
while at her parents' house. She was flown to Dunedin
Hospital and spent two days in intensive care before being
discharged on July 29.
She advised the Hughes she might be off work for up to six
weeks. She returned to work on August 8, working for three
days until she had severe chest pain on August 10. A medical
certificate cautioned against working more than eight hours
Explanations differed on how and when Ms Johnstone's
Ms Johnstone said her father went to the Hughes' farm to
provide the medical certificate and talk about her health.
She said it was her understanding her father had requested
she be allowed to work part-time and this had been rejected.
The next day, she went to work several hours late to talk to
Tony Hughes and claimed he became instantly angry. She told
the authority the discussion led her to conclude she did not
wish to return. She therefore arranged for her parents and
brother to remove her property from the house she lived in at
the Hughes' farm.
The Hughes claimed Ms Johnstone abandoned her employment when
she removed her belongings from the house she occupied on the
evening of August 11. Mr Hughes' evidence is he saw her
remove her possessions but did not ask why. There was no
communication between the parties until Wayne Hughes' letter
on September 1. That letter said the Hughes assumed Ms
Johnstone had decided to end her employment. The letter did
not use the word abandon, nor did a second letter, dated
September 25. Abandonment was first mentioned on October 3.
ERA member Michael Loftus said the employment agreement
required that the employer inquire as to the employee's
circumstances and notify the employee use of the abandonment
clause was being considered before it could be applied. The
Hughes did not do this, and Mr Loftus found Ms Johnstone did
not abandon her job.
The Hughes lodged a claim for money owed and sought repayment
for the leave taken in advance but to which an entitlement
had never been earned, and an alleged overpayment.
The Hughes' lawyer told the authority that if Ms Johnstone
had taken leave, it must, given her short employment, have
been leave in advance. Mr Hughes conceded there had been no
agreement about leave in advance and he told Ms Johnstone she
had to go. The authority found the Hughes were seeking
repayment for something they were legally prevented from
doing. It also found the claim for an alleged overpayment
failed due to a lack of evidence.
Ms Johnstone claimed she was unjustifiably dismissed and
disadvantaged, but Mr Loftus found otherwise, stating
discussions between both parties were incomplete when Ms
Johnstone decided to leave and her decision was influenced by
second-hand reporting of a conversation she was not part of.
The authority ruled both the Hughes' claim for repayment of
money allegedly overpaid failed, and Ms Johnstone's
counter-claim also failed.
Costs were reserved.