| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 75 |
| Hearing date | 9 Mar 2012 |
| Determination date | 23 April 2012 |
| Member | H Doyle |
| Representation | P Weeks ; no appearance |
| Location | Christchurch |
| Parties | Ward v Tech Brands Pacific Ltd |
| Summary | JURISDICTION – Whether employee or independent contractor – Respondent claimed applicant independent contractor – Applicant managed respondent’s new branch, opened and closed office, and supervised staff – Respondent claimed employment agreement only signed to support applicant’s attempt to obtain loan – Authority not satisfied applicant signed independent contractor agreement – Found unusual for position similar to applicant’s to be filled by independent contractor – Found respondent required someone with authority to deal with Work and Income New Zealand (“WINZ”) – Found applicant did not have necessary tools to enable success in role as independent contractor – Found applicant employee – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Applicant employed by respondent for five months but paid for only two weeks – Respondent to pay applicant $10,307 arrears of wages and $970 arrears of holiday pay – Interest payable – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – Respondent told applicant dismissed because position redundant – Parties reached agreement that applicant to be paid on different basis – One month later respondent told applicant dismissed under 90 day trial period – Applicant and respondent able to resolve matters again – Found employment relationship terminated one month later when applicant left – Found claim one of constructive dismissal – Found breach of contractual obligation to pay employees could be basis of constructive dismissal claim – Found applicant had continued in employment relationship without pay for five months – Found while applicant had complained and taken some steps to get money, applicant complied with respondent’s instruction to ensure continued to receive WINZ payments – Found applicant affirmed breaches of employment agreement by remaining in employment – No dismissal – Branch manager |
| Result | Application granted (arrears of wages and holiday pay); Arrears of wages ($10,307.69); Arrears of holiday pay ($970.77); Interest payable (5%); Application dismissed (unjustifiable dismissal); Costs reserved |
| Main Category | Jurisdiction |
| Statutes | Judicature Act 1908 s87(3) |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Christchurch_75.pdf [pdf 47 KB] |