| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 39 |
| Hearing date | 13 Mar 2012 |
| Determination date | 11 April 2012 |
| Member | G J Wood |
| Representation | D Abraham ; N Duffy |
| Location | Napier |
| Parties | Green v Globe Holdings Ltd |
| Summary | JURISDICTION – Whether employee or independent contractor – Respondent claimed applicant contractor to separate company (“T”) which operated respondent – Respondent failed to provide copy of parties’ employment agreement (“EA”) or wage records as requested by applicant – Respondent failed to provide evidence that applicant contractor to T – Respondent failed to comply with Authority directions or appear in person at investigation meeting – Applicant claimed employed to manage respondent’s apartments including taking bookings and payments and organising repairs and cleaning – Applicant claimed had little contact with respondent and only dealt with respondent director (“F”) approximately three times over four year period – Respondent sent applicant emails about wages and holiday pay entitlements – Deductions from payments made to applicant for KiwiSaver although not clear what employer making employer contributions – One letter from F to applicant referred to T but written on respondent’s letterhead – Applicant accepted money applicant received on respondent’s behalf was banked into T’s bank account but claimed all other dealings were with respondent – Respondent claimed T paid applicant’s salary - Authority found parties’ common intention when relationship commenced was that applicant would be employee – Found no evidence respondent discussed contractor relationship with applicant or indicated that T was applicant’s employer – Found applicant had minimal supervision but was ultimately controlled by F – Found control and integration tests offered little guidance – Found applicant not in business on own account and paid at fixed rate – Found even if respondent had transferred applicant’s employment to T applicant had not consented to transfer - Found applicant employee - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages – Applicant claimed respondent failed to pay final pay and holiday pay when employment terminated – Respondent to pay applicant $1,353 arrears of wages and $26,773 arrears of holiday pay – Interest payable - PENALTY – Applicant sought penalty for respondent’s failure to provide EA or wage and leave records – Found penalty appropriate as if respondent had supplied documents matter would have been dealt with more efficiently - $4,000 penalty appropriate - Apartments Manager |
| Result | Applications granted ; Arrears of wages ($1,353.69) ; Arrears of holiday pay ($26,773.22) ; Interest (5%) ; Penalty ($4,000)(payable to Crown) ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6 |
| Cases Cited | Heritage Expeditions Ltd v Fraser [2011] NZEMPC 157;Tsoupakas v Fendalton Construction Ltd unreported, Colgan CJ, 18 June 2009, WC 16/09;Weston v Fraser (2008) 5 NZELR 575 |
| Number of Pages | 9 |
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