| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 103 |
| Hearing date | 5 Feb 2013 |
| Determination date | 07 June 2013 |
| Member | C Hickey |
| Representation | Christchurch |
| Parties | Champion v White, Fox and Jones |
| Summary | COUNTERCLAIM – PRACTICE AND PROCEDURE – Admissibility of evidence – Whether letter sent between parties privileged – JURISDICTION – Whether applicant employee or independent contractor – Applicant resigned as partner to become consultant – ARREARS OF WAGES – Applicant sought arrears of wages – Whether applicant entitled to pro-rata top-up payment – Applicant resigned before end of financial year – Applicant had not achieved budget target – Applicant paid base salary with top-up if budget target met at end of financial year – Consultant |
| Abstract | AUTHORITY FOUND –;COUNTERCLAIM – PRACTICE AND PROCEDURE: Certain part of letter part of chain of without prejudice correspondence and written in connection with attempt to settle dispute between parties. Certain part of letter not taken into account by Authority.;JURISDICTION: Common intention as to applicant’s status could not be established. Provision of car park and income protection insurance characteristic of employment. At risk top-up payment neutral indicator. Respondent controlled billing process. Freedom to come and go marker of applicant’s professional status rather than employment status. Applicant expected to remain accessible to clients. Respondent provided office and paid for applicant’s practising certificate as employed solicitor. Applicant integral part of respondent. Applicant employee.;ARREARS OF WAGES: Pro-rata term not considered when contract signed. Contract clear and unambiguous. Twelve month period objective and accepted measurement point for assessing target. Contract effective without pro-rata term. Applicant not entitled to further payment. No arrears of wages. |
| Result | Applications granted (jurisdiction)(counterclaim – practice and procedure) ; Application dismissed (arrears of wages) ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | Contractual Remedies Act 1979 s9;ERA s6;ERA s160;Evidence Act 2006;Evidence Act 2006 s57(1);Lawyers and Conveyancers Act 2006 |
| Cases Cited | Bryson v Three Foot Six Ltd [2003] 1 ERNZ 581;Bryson v Three Foot Six Ltd (No 2) [2005] ERNZ 372 ; [2005] 3 NZLR 721;Idea Services Ltd (in stat man) v Barker (2012) 10 NZELR 262;Miller v Fonterra Co-Operative Group Ltd [2012] ERNZ 100;Silver Fern Farms Ltd v New Zealand Meat Workers and Related Trade Unions Inc [2010] ERNZ 317;Strachan v Moodie (2012) 10 NZELR 216;Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] 2 NZLR 444 |
| Number of Pages | 17 |
| PDF File Link: | 2013_NZERA_Christchurch_103.pdf [pdf 232 KB] |