| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 285 |
| Hearing date | 23 Jul 2012 |
| Determination date | 21 August 2012 |
| Member | R Larmer |
| Representation | M Selwyn (in person) ; J Edwards |
| Parties | Selwyn v Edwards Drainage Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – Authority found no evidence applicant’s status changed – Found applicant employee – UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed by respondent – Found final text message amounted to sending away of applicant by respondent – Found applicant dismissed – Dismissal unjustified – REMEDIES – Respondent to pay applicant $2,607 reimbursement of lost wages – 15 per cent contributory conduct – $3,400 compensation appropriate – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Found applicant entitled to be paid for hours attended work and available for work – Respondent to pay applicant $484 arrears of wages and $3,025 arrears of holiday pay |
| Abstract | Applicant claimed unjustifiably dismissed by respondent. Applicant sought arrears of wages and holiday pay. Respondent claimed applicant independent contractor. Respondent claimed applicant hired as employee but told by respondent would need to become independent contractor if applicant wished to continue working. Applicant denied conversation took place. Subsequently applicant claimed respondent’s director (“E”) threatened to assault applicant. E denied making threat. Two months later applicant attended job and called E to seek instructions as to where incoming truck to drop load. Applicant directed truck to wrong location. Applicant claimed received four abusive text messages from E amounting to dismissal. Applicant not paid for last week of work and not paid holiday pay. Respondent claimed did not pay applicant for final weeks’ work because applicant’s productivity too low. Applicant claimed productivity affected by inability to operate digger until pin replaced. Respondent claimed applicant’s responsibility to fix pin.;AUTHORITY FOUND –;JURISDICTION: Unlikely applicant would agree to change status when no benefit in doing so. No evidence applicant’s status had changed. Applicant employee.;UNJUSTIFIED DISMISSAL: Applicant’s claim about threatened assault corroborated by fellow employee. Respondent sent applicant text messages against backdrop of threatened assault and other abusive texts. Final text amounted to sending away of applicant. Applicant dismissed. Dismissal unjustified. REMEDIES: Respondent to pay applicant $2,607 reimbursement of lost wages. 15 per cent contributory conduct. $3,400 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Respondent responsible for providing equipment in working order. Applicant entitled to be paid for hours attended work and available for work. Respondent to pay applicant $484 arrears of wages and $3,025 arrears of holiday pay. |
| Result | Applications granted; Reimbursement of lost wages ($2,607); Contributory conduct (15%); Compensation for humiliation etc ($3,400); Arrears of wages ($484); Arrears of holiday pay ($3,025.44); Disbursements in favour of applicant ($71.56)(filing fee); No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s124;ERA s128(2) |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Auckland_285.pdf [pdf 228 KB] |