| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 547 |
| Hearing date | 13 Apr 2011 |
| Determination date | 21 December 2011 |
| Member | A Dumbleton |
| Representation | C B M Adams (in person) ; G Linton (in person) |
| Location | Auckland |
| Parties | Adams v Linton |
| Summary | JURISDICTION – Whether employee or independent contractor - Applicant claimed employed by respondent - Respondent failed to lodge statement in reply but presented evidence – Respondent performed work under contract for another company (“P”) - Respondent claimed was self-employed and sometimes needed applicant as assistant – Respondent claimed applicant was casual employee employed by P and provided when P considered two people were needed to perform work - Respondent claimed supplied applicant with basic tools – P paid respondent on invoice basis and respondent withdrew cash and paid applicant weekly for hours worked – Respondent later began withholding tax from money received from P – Respondent claimed applicant just turned up when wanted work and could have found another assistant – P claimed applicant was subcontractor - Authority found real nature of parties’ relationship one of employer and employee – Found control, integration and economic reality tests showed parties had employment agreement and casual nature of applicant’s work should not be confused with commercial independence - Found applicant employed by respondent as casual employee - UNJUSTIFIED DISMISSAL – Dismissal - Applicant claimed unjustifiably dismissed by respondent - Found employment ended when particular job ended and applicant wanted to change career – No dismissal – ARREARS OF HOLIDAY PAY – Applicant sought unpaid holiday pay – Authority accepted applicant’s payments schedule as parties did not have written employment agreement or wage records – Found arrears of holiday pay due and owing – Interest payable |
| Result | Applications granted (jurisdiction and arrears of wages) ; Arrears of wages ($4,825.40) ; Interest (5%) ; Application dismissed (unjustified dismissal) ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Jurisdiction |
| Statutes | ERA s6 |
| Cases Cited | Poulter v Antipodean Growers Ltd [2010] NZEMPC 77 |
| Number of Pages | 5 |
| PDF File Link: | 2011_NZERA_Auckland_547.pdf [pdf 22 KB] |