| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 152 |
| Hearing date | 1 Sep 2011 |
| Determination date | 26 July 2012 |
| Member | H Doyle |
| Representation | L Vincent ; W van Harselaar |
| Location | Dunedin |
| Parties | Taylor v Barlow Justice Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – Authority found fundamental test favoured contract of service relationship - Found evidence overall showed applicant employee - UNJUSTIFIED DISMISSAL - Dismissal - Applicant claimed unjustifiably dismissed by respondent – Found applicant dismissed when told by respondent could not offer applicant employment after applicant became shareholder – Found respondent did not follow fair process or comply with good faith obligations - Dismissal unjustified – REMEDIES - No contributory conduct - $8,480 reimbursement of lost wages - $8,000 compensation appropriate - ARREARS OF WAGES AND HOLIDAY PAY - Insufficient evidence to establish whether arrears of wages or holiday pay outstanding - Registered Valuer |
| Abstract | Applicant employed as registered valuer. Applicant claimed unjustifiably dismissed and unjustifiably disadvantaged by unilateral reduction in salary payments. Respondent director (“T”) discussed with applicant possibility of applicant becoming shareholder and director in respondent. Applicant became shareholder following year and signed shareholders’ agreement. T told applicant would not be able to offer applicant position at respondent as employee. Applicant denied once became shareholder no longer employee of respondent. Applicant later sold shares in respondent. Applicant resigned as director but continued to complete valuing work for respondent. Parties did not have employment agreement. Parties agreed applicant spent majority of time completing valuing work. Applicant requested hours be decreased after became shareholder. Applicant claimed did not agree that remuneration would be reduced. Respondent did not pay applicant holiday pay when employment ended.;AUTHORITY FOUND –;JURISDICTION: No evidence applicant resigned as employee or dismissed when became shareholder and no mention of change in applicant’s status in parties’ shareholder agreement. Applicant viewed herself as employee and valuing work separate to applicant's shareholding duties. Respondent discussed reducing applicant’s salary after applicant began working less hours. Factors consistent with employment relationship included applicant continuing to receive salary, leave entitlement and respondent paying for applicant’s training expenses. Control test inconclusive. Fundamental test favoured contract of service. Industry practice not indicative in circumstances. Evidence overall showed applicant employee.;UNJUSTIFIED DISMISSAL: Applicant dismissed when told by respondent could not offer applicant employment after became shareholder. Respondent did not follow fair process or comply with good faith obligations. Applicant did not expect would be dismissed after signed shareholder agreement. Dismissal unjustified. REMEDIES: No contributory conduct. $8,480 reimbursement of lost wages. $8,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Appropriate to deal with applicant’s unjustified disadvantage claim by determining whether arrears of wages or holiday pay. Insufficient evidence to establish whether arrears of wages or holiday pay outstanding. |
| Result | Application granted(jurisdiction and unjustified dismissal) ; Reimbursement of lost wages ($8,480.31) ; Compensation for humiliation etc ($8,000) ; Application dismissed (arrears of wages and holiday pay) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s6;ERA s103A;ERA s124;ERA s135;ERA Second Schedule cl11;Employment Relations Amendment Act 2010 s38 |
| Cases Cited | Bryson v Three Foot Six Ltd [2005] ERNZ 372 ; [2005] 3 NZLR 721;Gatenby v Hydrotech (2006) Ltd unreported, R Arthur, 18 November 2008, AA 393/08;Lee v Lee’s Air Farming Ltd [1961] NZLR 325;Smith v Practical Plastics Ltd [1998] 1 ERNZ 323 |
| Number of Pages | 20 |
| PDF File Link: | 2012_NZERA_Christchurch_152.pdf [pdf 301 KB] |