| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 58 |
| Hearing date | 29 Mar 2012 |
| Determination date | 04 April 2012 |
| Member | D Appleton |
| Representation | R Thompson ; no appearance |
| Location | Christchurch |
| Parties | Hume v Piefection Foods Ltd |
| Summary | JURISDICTION – Whether employee or independent contractor – Respondent claimed applicant contractor - No appearance for respondent as claimed costs too high – Authority found appropriate to proceed with investigation – Applicant claimed when commenced employment suggested to respondent would be contractor but respondent director (“M”) preferred to take on applicant as employee – Parties agreed applicant would be employed for eight weeks - Applicant paid through payroll like respondent’s other employees – Applicant filled out timesheets, and didn’t “clock in” like other employees as often worked away from workplace – Applicant used personal email for respondent matters at M’s request – Applicant claimed had business card with applicant and respondent’s names on it like other employees – Applicant claimed did not discuss with respondent what happened if wanted to take holiday or sick – Applicant paid bonus like other employees – Applicant claimed only checked critical issues with respondent, managed day-to-day activities alone and hours varied each week – M sent applicant email eleven weeks after commencement stating “not working out” and requested applicant return respondent’s property – Applicant claimed completely surprised by respondent’s email – Authority found applicant paid through payroll and respondent paid KiwiSaver contributions and recorded annual leave balance – Respondent claimed applicant paid through payroll so applicant did not have to deal with tax obligations of contractors – Found respondent struggling financially and unlikely respondent would have agreed to KiwiSaver contribution just to help applicant – Found control test should be set aside – Found applicant managed and disciplined other employees, represented company and signed off accounts as well as day-to-day duties – Found in order for applicant to do job correctly needed to be fully integrated – Found integration test favoured applicant being employee – Applicant claimed had own company but not trading or registered for GST – Found applicant having another part-time position did not indicate applicant contractor – Found fundamental test showed most likely applicant employee – Found evidence overall showed applicant employee – UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed issues with applicant’s performance or alternatively applicant abandoned employment – Applicant denied abandoned employment - Found applicant not employed on fixed term basis – Found respondent terminating applicant’s employment procedurally unjustified – Dismissal unjustified – REMEDIES - No contributory conduct - $10,140 reimbursement of lost wages - $5,000 compensation appropriate – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought $1,350 arrears of wages and $464 arrears of holiday pay – Found arrears of wages and holiday pay due and owing - Interest payable - PENALTY – Applicant sought penalty for respondent’s failure to provide wage and time records – Found although respondent had failed to reply applicant not disadvantaged by failure – No penalty - General Manager |
| Result | Applications granted (jurisdiction, unjustified dismissal and arrears of wages and holiday pay) ; Reimbursement of lost wages ($10,140) ; Compensation for humiliation etc ($5,000) ; Arrears of wages ($1,350) ; Arrears of holiday pay ($464.40) ; Interest (5%) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6(2);ERA s6(3);ERA s66;ERA s103A;ERA s123(1)(b);ERA s128(2);ERA s128(3);ERA s124;ERA s130;ERA Second Schedule cl11;Judicature Act 1908 s87(3) |
| Cases Cited | Bryson v Three Foot Six Ltd [2005] ERNZ 372 |
| Number of Pages | 16 |
| PDF File Link: | 2012_NZERA_Christchurch_58.pdf [pdf 74 KB] |