| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 152 |
| Determination date | 07 May 2012 |
| Member | J Crichton |
| Representation | S Hendry (in person) ; R Henderson |
| Location | Auckland |
| Parties | Hendry v Jorna & Anor |
| Other Parties | Bolderwood Investments Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – Authority found personal grievance not raised by applicant – JURISDICTION – Whether employee or independent contractor – Found difficult to attribute any control by respondents over applicant – Found applicant not integrated into respondents’ business and relationship between applicant and respondents missing main indicators of employment relationship – Found applicant independent contractor – No jurisdiction |
| Abstract | No written agreement between applicant and respondents. No provision for applicant to receive annual leave or sick pay and applicant responsible for applicant’s tax arrangements. Applicant left in charge of job site during respondent’s absence but applicant not paid for much of this period and forced to look for alternative employment. Applicant dismissed. Applicant claimed unjustifiably dismissed by respondents. Respondents claimed letter from applicant allegedly raising applicant’s personal grievance only referred to tenancy matters. Respondents claimed applicant independent contractor.;AUTHORITY FOUND –;RAISING PERSONAL GRIEVANCE: Letter to respondents relied on by applicant as raising personal grievance did not make clear personal grievance being raised, nature of grievance or redress sought by applicant. Letter capable of being read as referring to tenancy matters. Even if personal grievance raised, difficult to persuade Authority just to allow personal grievance to be raised more than three years later. Grievance not raised within 90 days.;JURISDICTION: Difficult to attribute any control by respondents over applicant. Applicant not integrated into respondents as applicant worked independently and was left alone on job site substantially without income. Normal indicators of employment relationship absent as applicant responsible for applicant’s tax and no provision made for annual leave or sick pay. Applicant independent contractor. No jurisdiction. |
| Result | Application dismissed; Costs to lie where they fall |
| Main Category | Jurisdiction |
| Statutes | ERA s6;ERA s114(6) |
| Cases Cited | Bryson v Three Foot Six Ltd (No 2) [2005] ERNZ 372; [2005] 3 NZLR 721 |
| Number of Pages | 7 |
| PDF File Link: | 2012_NZERA_Auckland_152.pdf [pdf 33 KB] |