| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 309 |
| Hearing date | 30 Aug 2012 |
| Determination date | 10 September 2012 |
| Member | A Dumbleton |
| Representation | A Ghazali (in person) ; R Naidu |
| Parties | Ghazali v Middlemore Retail Pharmacy Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor during last five months of engagement – Authority found application of control, integration, fundamental and mixed tests made it quite clear applicant employee not contractor – Found applicant employee during last five months of engagement - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay for last five months of engagement after gained pharmacist registration and claimed not paid during sick leave or while attended training course – Found applicant not entitled to be paid wages while on training course and applicant able to take lunch breaks – Found applicant entitled to arrears of wages when took sick leave during last five months of engagement - Respondent to pay applicant $580 arrears of wages - Interest payable - Applicant entitled to arrears of holiday pay for last five months of engagement - Respondent to pay applicant $3,129 arrears of holiday pay - Interest payable - Pharmacist |
| Abstract | Applicant sought arrears of wages and holiday pay for last five months of engagement after gained pharmacist registration and claimed not paid during sick leave or while attended training course. Applicant claimed during earlier period respondent prevented applicant from taking lunch break and sought further arrears of wages accordingly. Applicant studying while worked for respondent and employed as intern before obtained professional registration as pharmacist. Respondent denied any arrears of wages or holiday pay outstanding and denied applicant employee during last five months of engagement. Respondent claimed during last five months applicant worked as “locum” before engaged as independent contractor. Respondent claimed parties’ agreement did not state applicant would be paid while on training course. Previously labour inspector declined to pursue whether applicant entitled to wages for last five months and stated parties’ locum" arrangement similar to contractor not employment relationship. Respondent continued to deduct tax for PAYE purposes during last five months of applicant’s engagement but no provision holiday pay.;AUTHORITY FOUND –;JURISIDICTION: Use of term “locum” not determinative of parties’ relationship. Applicant engaged as registered pharmacist for last five months of employment so respondent could trial keeping respondent open for longer hours. Applicant’s duties according to respondent’s requirements and applicant fully integrated in respondent. Applicant paid on time basis rather than results or profit basis. Application of control, integration, fundamental and mixed tests made it quite clear applicant employee not contractor. Applicant employee during last five months of engagement.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant able to take lunch breaks and no basis for applicant’s claim entitled to arrears of wages as could not take lunch breaks. Parties’ agreement did not state applicant entitled to be paid while attended course. Applicant entitled to arrears of wages when took sick leave during last five months of engagement. Respondent to pay applicant $580 arrears of wages. Interest payable. Applicant entitled to arrears of holiday pay for last five months of engagement. Respondent to pay applicant $3,129 arrears of holiday pay. Interest payable." |
| Result | Application granted ; Arrears of wages ($580) ; Arrears of holiday pay ($3,129.72) ; Interest (5%) ; No order for costs ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Jurisdiction |
| Statutes | ERA s6;ERA s6(2) |
| Cases Cited | Bryson v Three Foot Six Ltd [2005] 3 NZLR 721;Poulter v Antipodean Growers Ltd (2010) 7 NZELR 543 |
| Number of Pages | 7 |
| PDF File Link: | 2012_NZERA_Auckland_309.pdf [pdf 109 KB] |