| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 134 |
| Hearing date | 16 Oct 2012 |
| Determination date | 31 October 2012 |
| Member | P R Stapp |
| Representation | B Carstens ; no appearance |
| Location | Wellington |
| Parties | Carstens v Kohere & Anor |
| Other Parties | Hikonui COntracting Services Ltd |
| Summary | JURISDICTION – Whether applicant employee - RAISING PERSONAL GRIEVANCE - UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably dismissed by respondents – Whether grievance raised within 90 days - Authority found appropriate to join second respondent on notice – Found applicant employee and doctrine of undisclosed principal applied – Found grievance out of time however Authority could assume respondents had consented to applicant raising grievance out of time – Found applicant dismissed by first respondent when first respondent gave applicant notice – Found fair and reasonable employer could not have justified applicant’s dismissal - Dismissal unjustified – REMEDIES - No contributory conduct - $3,500 compensation appropriate - Respondent to pay applicant $9,607 reimbursement of lost wages - Meter Installer |
| Abstract | Applicant claimed employed as meter installer by first respondent (“K”) trading as second respondent (“HCSL”). Applicant claimed unjustifiably dismissed. Respondents claimed applicant contractor and not unjustifiably dismissed. No appearance by respondents. Applicant paid rate for completing meter installations plus rate when had to use ladder for installations. Applicant claimed paid further amount based on meters installed as holiday pay. Applicant paid for own petrol but claimed parties agreed applicant would be reimbursed. Applicant claimed expected K to provide applicant with work vehicle in future. Applicant not reimbursed for petrol expenses and had to pay own licence fee. Respondent later gave applicant week’s notice of engagement ending. Respondent did not pay applicant holiday pay as requested. Respondent claimed ended arrangement with applicant as applicant uncooperative and negative. Parties did not have written employment agreement. Applicant claimed not in business on own account and available to work for K at all times. Applicant claimed dealt with K personally and had no knowledge of HCSL.;AUTHORITY FOUND –;JURISDICTION: Joined HCSL to application on notice. No good reason for respondents’ failure to attend investigation meeting. K controlled amount of work allocated to applicant and responsible for managing applicant’s conduct and performance. K had fair measure of control over applicant. Information relevant to inquiry whether applicant employee or contractor included that payments made to applicant were performance related and no record of times applicant worked, applicant was GST registered, applicant paid for vehicle expenses and due to hours worked for K applicant unable to work for another party. More likely than not applicant employee as working fulltime, applicant’s work under K’s instruction at all times and K had relied on employment matters to justify arrangement with applicant ending. Parties entered into arrangement as substitution for applicant’s holiday pay and no evidence applicant could work hours as wished. Undisclosed principal doctrine applied. Applicant employee.;RAISING PERSONAL GRIEVANCE - UNJUSTIFIED DISMISSAL: Not sufficient evidence applicant raised grievance with respondents before made application to Authority. Based on date applicant made application grievance out of time. Authority could assume respondents consented to grievance being raised out of time as only claimed applicant contractor and therefore Authority did not have jurisdiction to determine grievance. Applicant dismissed by K. Fair and reasonable employer could not have justified applicant’s dismissal. Dismissal unjustified. REMEDIES: No contributory conduct. $3,500 compensation appropriate. Respondent to pay applicant $9,607 reimbursement of lost wages. |
| Result | Application granted ; Compensation for humiliation etc ($3,500) ; Reimbursement of lost wages ($9,607.78) ; No order for costs ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s6;ERA s128;ERA s221;ERA Second Schedule cl15 |
| Cases Cited | Tsoupakis v Fendalton Construction Ltd unreported, Colgan CJ, 18 June 2009, WC16/09 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Wellington_134.pdf [pdf 241 KB] |