| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 452 |
| Hearing date | 29 Oct 2012 |
| Determination date | 12 December 2012 |
| Member | R A Monaghan |
| Representation | J Peters ; E Phillips |
| Location | Rotorua |
| Parties | Peters v K & K Caterers and Equipment 2010 Ltd & Anor |
| Other Parties | Phillips t/a KCE Catering Equipment Supplies |
| Summary | JURISDICTION – Whether applicant in employment relationship with respondents – Authority found applicant did not have agreement about nature of position, hours of work or rate of remuneration with first respondent (K") - Found employment relationship did not commence and even if was agreement to enter into employment relationship, agreement was terminated at applicant’s initiative when applicant sent K letter – Found no employment relationship between applicant and K – Found no evidence employment agreement ("EA") drafted by applicant given to second respondent ("P") and Authority accepted P did not see EA – Found likely was conversation between applicant and P that applicant to be consultant to P – Found however applicant needed to be in business on own account to be contractor rather than employee and no evidence applicant, as previously adjudicated bankrupt, sought permission from Official Assignee to enter into business on own account – Found was employment relationship between applicant and P - ARREARS OF WAGES – RECOVERY OF MONIES – Found appropriate start date for arrears of wages claim was when P decided to continue operating business on own – Found parties discussed applicant working three days per week for maximum sum of $400 per week - Respondent to pay applicant $16,850 arrears of wages – Found no term of employment relating to applicant’s entitlement to be reimbursed for fuel and general expenses – Found recovery of monies not arising from employment relationship - No recovery of monies" |
| Abstract | Applicant adjudicated bankrupt and applicant’s business of buying, selling and supplying used catering equipment sold to first respondent (“K”). Applicant claimed entered into employment agreement (“EA”) with K, employment commenced and sought arrears of wage and reimbursement of expenses. K’s directors disputed financial matters and second respondent (“P”) continued to operate business alone. Applicant claimed continued working as employee of P. Applicant claimed not paid any wages or reimbursed for expenses during employment. After applicant adjudicated bankrupt, applicant met with P and proposed that assets of applicant’s business would be sold to company and company would employ applicant for three years before applicant purchased shares held in trust for applicant. Applicant proposed role as employee would make available applicant’s knowledge and industry contacts. Parties discussed proposals but did not enter into EA and terms and conditions of applicant’s employment not discussed. Applicant subsequently spoke to P as no arrangements had been made to allocate shareholding and applicant not happy with role envisaged for applicant as employee. Applicant sent letter same day was withdrawing from any arrangement to provide services. Applicant continued to attend company premises from time to time and assisted in re-opening of business until had disagreement with another party involved in business. Applicant claimed entered into agreement with P would attend auctions and act as travelling salesperson. P prepared written EA but acknowledged parties did not discuss rate of pay. P agreed that when began operating business alone applicant performed work for P’s business but denied arrangement was employment relationship. Applicant sent P letter stating applicant’s services would end at time suitable for both parties but P did not respond and applicant continued working. Applicant sent P further termination letters.;AUTHORITY FOUND –;JURISDICTION: During period in which applicant continued to attend premises and assisted in re-opening of business, applicant was ‘person intending to work’ for K in accordance with s6 Employment Relations Act 2000. However applicant’s involvement in business was at applicant’s own discretion and not for purpose of meeting an obligation to perform work. Applicant did not have agreement about nature of position, hours of work or rate of remuneration with K. Employment relationship did not commence and even if was agreement to enter into employment relationship, agreement was terminated at applicant’s initiative when applicant sent letter. No employment relationship between applicant and K. No evidence EA drafted by applicant given to P and Authority accepted P did not see EA. Likely was conversation between applicant and P that applicant to be consultant to P. However applicant needed to be in business on own account to be contractor rather than employee and no evidence applicant sought permission from Official Assignee to enter into business on own account. Was employment relationship between applicant and P.;ARREARS OF WAGES – RECOVERY OF MONIES: Appropriate start date for arrears of wages claim was when P began employing applicant and was when P decided to continue operating business on own. Employment terminated when applicant sent P third termination letter. Applicant worked for P not solely because of employment-related obligation but had additional motives of wishing to prove worth to business and wanted to buy back into business as soon as possible. Parties discussed applicant working three days per week for maximum sum of $400 per week. Respondent to pay applicant $16,850 arrears of wages. No term of employment relating to applicant’s entitlement to be reimbursed for fuel and general expenses. Recovery of monies not arising from employment relationship. No recovery of monies. |
| Result | Application granted (arrears of wages) ; Arrears of wages ($16,850) ; Application dismissed (recovery of monies) ; No order for costs ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Jurisdiction |
| Statutes | ERA s6;Insolvency Act 2006 s149 |
| Number of Pages | 8 |
| PDF File Link: | 2012_NZERA_Auckland_452.pdf [pdf 126 KB] |