| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 25 |
| Hearing date | 28 Sep 2010 - 20 Oct 2010 (2 days) |
| Determination date | 16 February 2012 |
| Member | M B Loftus |
| Representation | D Black ; D Sim, E Tait |
| Location | Dunedin |
| Parties | Mercer-Black v Zaibatsu 2006 Ltd |
| Summary | JURISDICTION – Whether employee or independent contractor – Applicant denied operated own business - Applicant claimed received percentage of sales but earnings subject to PAYE, had employee tax code, had set hours and entitled to holiday pay and sick leave – Respondent claimed applicant only served own client base, worked on commission basis and dictated own hours – Parties had employment agreement - Authority found applicant entitled to holiday and annual leave, tax arrangements consistent with employment relationship and no evidence of fees would expect applicant to pay if ran own business – Found applicant employee not independent contractor – UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent – Respondent’s director(“S”) discovered regular unexplained cash shortfalls and claimed money missing from handbag and wallet – Respondent claimed money missing could have been approximately $12,000 – Respondent arranged employee trip to Australia where respondent paid for airfares and accommodation but employees to pay for any other expenses – Hotel required credit card to secure room and applicant offered personal credit card after S’s credit card did not work – Applicant claimed expected any charges on credit card would be refunded by respondent – Applicant claimed when returned from trip discovered $374 charge for incidentals and room cleaning on credit card and S refused to pay amount owing – S installed security camera at premises and claimed footage showed applicant taking money from respondent’s cash drawer and S’s handbag and placing in applicant’s handbag – S held meeting with applicant – Applicant claimed unaware of possible consequences of meeting and not given opportunity to obtain support person – Applicant accepted took money but claimed returned money later same day – Applicant admitted to theft three times on same day – Respondent told applicant to “get your gear and go” and applicant returned respondent’s keys – Respondent denied dismissed applicant but claimed employment terminated after applicant failed to return to work - Applicant claimed took $60 from S’s handbag and cash drawer as needed to make interest payment on credit card – Applicant claimed realised only needed $40 to meet interest payment and returned $20 later same day – S denied contacted police before parties’ meeting – Applicant claimed S discussed accusations with number of people, had shown video to others and made complaint to professional ethics committee causing applicant humiliation – Found applicant dismissed after parties’ meeting – Found applicant admitted to theft before dismissed – Found theft totally destructive of trust in parties’ relationship however respondent failed to justify dismissal – Found 100 percent deduction for contributory conduct appropriate – Found however no benefit in making award then removing it – Found no remedies would accrue due to applicant’s conduct - Application dismissed |
| Result | Application granted (jurisdiction) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s124;Interpretation Act 1999 s4;Interpretation Act 1999 s7 |
| Cases Cited | Airline Stewards and Hostesses of New Zealand IUOW v Air New Zealand Ltd [1990] 3 NZLR 549;Wilmshurst v McGuire (t/a California Sun & Beauty Studio) [1999] 2 ERNZ 128 |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Christchurch_25.pdf [pdf 60 KB] |