| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 202 |
| Hearing date | 24 May 2012 |
| Determination date | 20 September 2012 |
| Member | D Appleton |
| Representation | P O'Sullivan ; P Kapua |
| Location | Invercargill |
| Parties | Pivott v Literacy Aotearoa Inc |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – Whether applicant person intending to work – Authority found terms of agreement one indicated contract for services – Found respondent exercised considerable control over applicant – Found applicant’s position as trainer meant integral to respondent’s business of delivering training but fact agreement one contemplated relationship of limited duration meant integration test favoured parties’ relationship being contract for services – Found unlikely applicant in business on own account – Found applicant employee – Found respondent had genuine reasons based on reasonable grounds for specifying agreement one to end at completion of delivery of training and applicant aware agreement of short term nature – Found agreement one stated way employment to end and applicant in no doubt agreement one to last only as long as training needed to be delivered – Found agreement one stated reasons for employment ending in that training to take place on twelve days only – Found agreement one expired fixed term employment agreement (“EA”) – Found e-mail exchange between applicant and respondent’s manager offer and acceptance of employment (“agreement two”) – Found applicant person intending to work – Found agreement two ended when individual provider (“LW”) decided not to go ahead with training involving applicant – Found proper enquiry required into whether performance of agreement two inhibited improperly by respondent rather than ending by doctrine of frustration and unjust to deprive applicant of opportunity to have grievance heard by invoking doctrine of frustration – RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – Found applicant’s grievance concerning alleged undermining of applicant’s position with primary employer raised seventeen months after applicant discovered respondent’s alleged involvement – Found not just to grant leave to raise grievance out of time – Found applicant aware respondent’s actions regarding cancellation of training dates with LW allegedly unjustifiable eleven months prior to raising grievance and not just to grant leave to raise grievance out of time – Grievance not raised within 90 days and leave to raise grievance out of time declined – Claim under Contractual Remedies Act 1979 within six year time limit and applicant to provide particulars of claim – Probationary trainer |
| Abstract | Applicant engaged by respondent as probationary trainer. Applicant claimed unjustifiably disadvantaged by respondent’s failure to allow applicant to complete training, respondent’s changing of assessment process, respondent’s undermining of applicant’s position with primary employer (“SALP”) and cancellation of training dates with individual provider (“LW”). Applicant claimed unjustifiably dismissed by respondent. Respondent claimed applicant independent contractor. Respondent claimed applicant’s grievances not raised within 90 day period. Applicant engaged under probation to work towards ability to train tutors without further assessment. Parties’ agreement (“agreement one”) described applicant as contractor and stated applicant to provide services on specified dates. Applicant unable to complete two training days. Eight months later applicant e-mailed respondent’s manager (“M”) about arrangement for completing applicant’s training. M replied asking if applicant available to provide training at LW on specified dates. Applicant agreed (“agreement two”) and M stated would attend on two days to complete applicant’s assessment. Applicant subsequently advised by M training postponed until further notice. Eleven months later applicant resigned. Applicant claimed constructively dismissed. Respondent claimed if applicant employee, agreement one expired fixed term employment agreement (“EA”). Applicant claimed told contract funded for two years. Applicant claimed parties’ relationship could not end until applicant completed assessment and if completed assessment would have been placed on respondent’s register of trainers. Respondent claimed agreement two would be between applicant and LW.;AUTHORITY FOUND –;JURISDICTION: Agreement one referred to applicant as contractor, provided for payment by way of invoice and contained arbitration clause not found in EAs. While respondent could deduct PAYE, many probationary trainers’ incomes below level required to register for GST. Terms of agreement one indicated contract for services. Respondent exercised considerable control over applicant including students taught, materials used, structure and dates of training and methodology of assessing students’ performance. Applicant’s position as trainer meant integral to respondent’s business of delivering training but fact agreement one contemplated relationship of limited duration meant integration test favoured parties’ relationship being contract for services. Unlikely applicant in business on own account. Applicant employee. Availability of funding for two years meant funding available for applicant to complete required training but did not extend life of agreement one as new agreement required for applicant to provide further training. Applicant’s rights with respect to completion of assessment conferred by candidate’s pre-assessment statement (“PAS”) rather than EA and breach of those rights unable to form basis of personal grievance. Individuals on respondent’s register of trainers employed by individual providers. Respondent had genuine reasons based on reasonable grounds for specifying agreement one to end at completion of delivery of training. Agreement one stated way employment to end and applicant in no doubt agreement one to last only as long as training needed to be delivered. Agreement one stated reasons for employment ending in that training to take place on twelve days only. Agreement one expired fixed term EA. Agreement two between applicant and respondent. E-mail exchange between applicant and M offer and acceptance of employment and parties’ knowledge of agreement one meant essential terms of agreement two certain. Applicant person intending to work. Agreement two ended when LW decided not to go ahead with training involving applicant. Proper enquiry required into whether performance of agreement two inhibited improperly by respondent rather than ending by doctrine of frustration and unjust to deprive applicant of opportunity to have grievance heard by invoking doctrine of frustration.;RAISING PERSONAL GRIEVANCE: Applicant’s grievance concerning alleged undermining of applicant’s position with SALP raised seventeen months after applicant discovered respondent’s alleged involvement. Not just to grant leave to raise grievance out of time. Applicant aware respondent’s actions regarding cancellation of training dates with LW allegedly unjustifiable eleven months prior to raising grievance and not just to grant leave to raise grievance out of time. Grievance not raised within 90 days and leave to raise grievance out of time declined. Action under Contractual Remedies Act 1979 within six year time limit and applicant to provide particulars of claim. |
| Result | Application granted (jurisdiction); Application dismissed (raising personal grievance); Costs reserved |
| Main Category | Jurisdiction |
| Statutes | Contractual Remedies Act 1979;ERA;ERA s5;ERA s6;ERA s6(2);ERA s6(3);ERA s54;ERA s65;ERA s65(2)(vi);ERA s66;ERA s66(1);ERA s66(2);ERA s66(4);ERA s114;ERA s114(3);ERA s114(4);ERA s115;ERA s115(c);ERA s142;ERA s162 |
| Cases Cited | Bryson v Three Foot Six Ltd (No 2) [2005] ERNZ 372; [2005] 3 NZLR 721;Wyatt v Simpson Grierson (a Partnership) [2007] ERNZ 489 |
| Number of Pages | 24 |
| PDF File Link: | 2012_NZERA_Christchurch_202.pdf [pdf 354 KB] |