| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 73 |
| Hearing date | 14 Feb 2013 |
| Determination date | 03 May 2013 |
| Member | D Appleton |
| Representation | P Moore ; G Gowland |
| Location | Christchurch |
| Parties | Gunning v Bankrupt Vehicle Sales & Finance Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – Whether applicant in sole charge of yard - UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed by respondent – Whether applicant casual or permanent employee - Applicant requested employment agreement – Respondent ‘called it quits’ over phone call - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Whether applicant entitled to commission for referrals – Whether applicant paid below minimum wage – PENALTY – Applicant sought penalties for respondent’s breach of employment agreement, failure to act in good faith and failure to provide written employment agreement |
| Abstract | AUTHORITY FOUND-;JURISDICTION: Authority ordered non-publication of details surrounding car hire company, business agreement between company and respondent and former associate of respondent. Applicant accepted did not fill out loan agreements or vehicle sale documentation. Respondent’s letter indicating applicant contractor created and pre-dated after dispute arose. Control test indicated employment relationship but integration test preferred independent contractor. Applicant provided no equipment and did not take on financial risk. Economic reality test suggested applicant employee. Respondent only requested invoices after applicant sought employment agreement. Applicant employee.;UNJUSTIFIED DISMISSAL: No regular work pattern. Applicant only required to work when work available. No mutual obligation between parties. Applicant casual employee. As casual employee no obligation on respondent to provide applicant work. Applicant not employed at time respondent “called it quits”. No dismissal.;ARREARS OF WAGES AND HOLIDAY PAY: Situation regarding commission not made clear to applicant. Bad faith to rely on industry practice without making clear to applicant. Agreement applicant entitled to commission for sales and referrals. Applicant entitled to receive commission. No clear time and wage records. Applicant not paid below minimum wage. Respondent entitled to holiday pay. Respondent to pay applicant $100 arrears of wages and $40 arrears of holiday pay.;PENALTY: Oral agreement applicant to be paid commission for sales and referrals. Breach of agreement adversely affected applicant. Respondent’s threat to involve police bad faith as nothing to suggest applicant involved in criminal activity. Breach not sustained. Respondent failed to provide employment agreement as believed applicant not employee. $500 penalty appropriate for respondent’s failure to pay commission. No penalty for respondent’s failure to act in good faith and failure to provide written employment agreement. |
| Result | Applications partially granted; Arrears of wages ($100) ; Arrears of holiday pay ($40) ; Penalty($500)(payable to applicant) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 – ERA s4(1) - ERA s4A – ERA s4A(a) - ERA s6(2) – ERA s6(3) - ERA s63A – ERA s135 - Holidays Act 2003 - Holidays Act 2003 s23 - Minimum Wage Act 1986 s6 - Minimum Wage Act 1986 s7 - Minimum Wage Act 1986 s8 - Minimum Wage Act 1986 s9 |
| Cases Cited | Bryson v Three Foot Six Ltd [2005] ERNZ 372; [2005] NZLR 721;Jinkinson v Oceania Gold (NZ) Ltd [2009] ERNZ 225;Lee v Minor Developments Ltd t/a Before Six Childcare Centre unreported, Shaw J, 23 Dec 2008, AC52/08;Rush Security Services Ltd t/a Darien Rush Security v Samoa [2011] NZEmpC 76;Waikato District Health Board v New Zealand Public Service Assoc Inc [2008] ERNZ 80 |
| Number of Pages | 21 |
| PDF File Link: | 2013_NZERA_Christchurch_73.pdf [pdf 236 KB] |