| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 128 |
| Hearing date | 25 Jul 2012 |
| Determination date | 18 October 2012 |
| Member | G J Wood |
| Representation | A Hill ; P Cheng, C Mosley |
| Location | Wellington |
| Parties | Odisho v La Bella Italia Distributors Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – Authority found parties’ common intention applicant employee – Found respondent exercised quality control over way applicant’s work performed even though no control at time over how work performed – Found applicant not integrated into respondent’s business – Found applicant not in business on own account as little opportunity to greatly expand income – Found applicant employee – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – Found applicant did not like scrutiny respondent placed on applicant’s work but respondent entitled to set standards and no evidence of improper motives – No dismissal – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Found applicant entitled to arrears of wages and holiday pay despite parties’ agreement applicant not eligible for annual leave or payment for public holidays – Respondent to pay applicant $6,079 arrears of holiday pay and $7,141 arrears of wages and holiday pay – RECOVERY OF MONIES – Applicant sought recovery of sick pay deducted improperly – Respondent to pay applicant $317 recovery of monies – PENALTY – Applicant sought penalty for respondent’s failure to keep wage and time records – Found unfair to order penalty in context of parties’ agreement applicant would not be paid holiday pay and respondent’s belief applicant independent contractor – No penalty – Cleaner |
| Abstract | Applicant employed by respondent as cleaner. Applicant claimed unjustifiably dismissed by respondent. Applicant sought arrears of wages and holiday pay, recovery of sick pay deducted improperly and penalty for respondent’s failure to keep wage and time records. Respondent claimed applicant independent contractor. Respondent paid applicant’s PAYE from beginning of relationship and parties’ agreed applicant not eligible for annual leave or payment for public holidays. Applicant worked at night and provided cover if unable to work. Seven months later respondent began paying applicant’s wife as if employee, although applicant’s wife performed no work. Applicant became frustrated with scrutiny respondent paid to standard of applicant’s work. Applicant slept late one morning and sent message stating cleaning had not been done. Applicant refused respondent’s request to come to work to complete cleaning. Applicant received message telling applicant to come to work or resign but applicant refused to do either. Respondent made number of attempts to get applicant to return to work over next few days but applicant refused. Applicant not replaced immediately.;AUTHORITY FOUND –;JURISDICTION: Parties’ common intention applicant employee. ‘Employment’ of applicant’s wife device beneficial to respondent to minimise taxation arrangements. Applicant would have been replaced immediately if not considered employee by respondent. Respondent exercised quality control over way applicant’s work performed and changes to requirements made even though no control at time over how work performed. Applicant not integrated into respondent’s business as worked on own, not treated as part of staff and cleaning operation incidental to respondent’s business. Applicant not in business on own account as little opportunity to greatly expand income and additional work performed by applicant’s company rather than applicant. Applicant employee.;UNJUSTIFIED DISMISSAL: Applicant did not like scrutiny respondent placed on applicant’s work but respondent entitled to set standards and no evidence of improper motives. No dismissal.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant entitled to arrears of wages and holiday pay despite parties’ agreement applicant not eligible for annual leave or payment for public holidays. Respondent to pay applicant $6,079 arrears of holiday pay and $7,141 arrears of wages and holiday pay.;RECOVERY OF MONIES: Respondent to pay applicant $317 recovery of monies.;PENALTY: Unfair to order penalty in context of parties’ agreement applicant would not be paid holiday pay and respondent’s belief applicant independent contractor. No penalty. |
| Result | Applications granted (jurisdiction)(arrears of wages and holiday pay)(recovery of monies); Arrears of holiday pay ($6,079.58); Arrears of wages and holiday pay ($7,141.90); Recovery of monies ($317.39); Applications dismissed (unjustified dismissal)(penalty); Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA;ERA s6;Holidays Act 2003 |
| Cases Cited | Glenmavis Farm Partnership (2007) v Todd [2012] NZEmpC 137;Tsoupakis v Fendalton Construction Ltd unreported, Colgan CJ, 18 June 2009, WC16/09 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Wellington_128.pdf [pdf 188 KB] |