| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 247 |
| Hearing date | 16 Oct 2012 |
| Determination date | 09 November 2012 |
| Member | D Appleton |
| Representation | P Tucker ; G Miles |
| Location | Christchurch |
| Parties | Thompson v Halkett Investments Ltd (Formerly Eye Pro Eyecare Ltd) |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Applicant employed by company (“E”) initially but claimed employment transferred to respondent – Authority found change of employment subject to mutual agreement of parties – Found credible respondent never intended specifically to be applicant’s employer as respondent’s clients in competition with E’s clients – Found applicant unable to rely on doctrine of undisclosed principal as could not show respondent did nothing to advise applicant not employed by respondent – Found applicant’s employment not transferred to respondent - Found no evidence of positive steps to dismiss applicant when E ceased trading – Found applicant did not accept offer to become independent contractor – Found applicant’s employment with E not terminated when E ceased trading but continued until applicant dismissed – Applicant employed by E |
| Abstract | Applicant claimed unjustifiably dismissed by respondent and sought arrears of wages and holiday pay. Respondent claimed applicant employed by different company (“E”) and became independent contractor after E ceased trading. Applicant employed initially by E but claimed employment transferred to respondent by way of conduct. Applicant claimed salary and expenses payments began to be paid by respondent. Applicant claimed given price list for products sold by respondent and started selling these products. Applicant claimed letter to E’s clients stating several of E’s functions being integrated into respondent confirmed merger of E into respondent. Applicant claimed application for credit filled out by respondent’s and E’s director (“M”) for applicant to borrow money secured against family house for benefit of M. Application form stated applicant employed by respondent for eight years. M claimed purpose of form to enable applicant to obtain funds to purchase vehicle registered to E and reference to respondent mistake. Applicant claimed issued rental car number by respondent. M claimed offered applicant opportunity to become independent contractor after became clear E would cease trading. After E ceased trading M advised Inland Revenue Department (“IRD”) E no longer employing people. M claimed continued to make payments to assist applicant but did not account to IRD or withhold tax. M arranged applicant’s travel and accommodation and allowed applicant use of respondent’s premises but claimed made clear to applicant had six months to get structure in place allowing applicant to operate as independent contractor. Applicant claimed employed by respondent and no interest in becoming independent contractor. Applicant claimed dismissed by letter from M’s lawyers stating applicant not respondent’s employee and not employed since E ceased trading.;AUTHORITY FOUND –;PRACTICE AND PROCEDURE: Payments from respondent explained by M’s evidence respondent meeting E’s obligations while E experiencing cashflow problems. M’s evidence applicant asked to sell brands sold previously to respondent’s clients only and made clear to applicant would not be representing respondent. Claim M would expect employee’s signature on form to allow employee to take charge over employee’s house in order to lend money to employer extraordinary and nothing in applicant’s evidence to suggest employed by respondent for eight years. M’s evidence rental car number issued under group arrangement respondent had with rental car agency. Change of employment subject to mutual agreement of parties. Credible respondent never intended specifically to be applicant’s employer as respondent’s clients in competition with E’s clients. M would not suggest applicant become independent contractor if believed applicant working already for respondent. Applicant unable to rely on doctrine of undisclosed principal as, assuming respondent was employer, respondent took steps to advise applicant not employed by respondent. Applicant’s employment not transferred to respondent. No evidence of positive steps to dismiss applicant when E ceased trading. M advising IRD E no longer employed people not dismissal because message not communicated to applicant. Applicant did not accept offer to become independent contractor. Applicant’s employment with E not terminated when E ceased trading but continued until applicant dismissed by letter from M’s lawyers. Applicant employed by E. |
| Result | Application dismissed; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s6;ERA s6(2);ERA s6(3) |
| Cases Cited | Cuttance (t/a Olympus Fitness Centres) v Purkis [1994] 2 ERNZ 321;Heritage Expeditions Ltd v Fraser (2011) 9 NZELR 142;Mehta v Elliott (Labour Inspector) [2003] 1 ERNZ 451;Tropotova v OCS Ltd unreported, J Crichton, 6 August 2010, CA 157/10 |
| Number of Pages | 14 |
| PDF File Link: | 2012_NZERA_Christchurch_247.pdf [pdf 265 KB] |