| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 161 |
| Hearing date | 6 Dec 2013 - 7 Dec 2013 (2 days) |
| Determination date | 12 August 2013 |
| Member | C Hickey |
| Representation | A Sharma ; J O'Connell |
| Location | Nelson |
| Parties | Pickering v Sealord Group Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – Applicant employee – PRACTICE AND PROCEDURE – Identity of employer – Applicant employed by respondent – UNJUSTIFIED DISMISSAL – Serious Misconduct – Dismissal unjustified |
| Abstract | Applicant (Mr Pickering) engaged by respondent (Sealord Group Ltd) as bosun (Agriculture, Forestry and Fishing Sector). Applicant claimed unjustifiably dismissed by respondent. Respondent claimed applicant independent contractor engaged by respondent on behalf of third company (“UF”) that chartered vessel. Applicant and respondent entered employment agreement (“EA”) expressed to be for one voyage. After voyage applicant engaged on on-going basis and paid bonus after each voyage based on percentage of catch. Respondent claimed applicant’s EA terminated after first voyage and applicant then engaged by UF as independent contractor. Respondent claimed industry practice was for New Zealand based fishers operating out of foreign ports in international waters to be engaged as independent contractors. Respondent claimed applicant must have known engaged by UF based on conversations with crewmates and branding of documents on vessel. Respondent claimed became concerned about reduction in applicant’s performance and attitude, and suspected applicant provided confidential information about profitable fishing spots to respondent’s competitor. Respondent claimed discussed concerns with applicant at meeting, applicant acknowledged had been slacking off, denied passing on confidential information and implicated crewmate. Respondent claimed confronted crewmate who denied allegation. Applicant denied admitted to slacking off and denied implicated crewmate. Applicant denied passing on confidential information to respondent’s competitor. Applicant dismissed.;AUTHORITY FOUND –;JURISDICTION: No common intention of parties reduced to writing after initial EA entered into. Applicant under constant control of respondent while at sea and in port but not during trips off and applicant free to take on other work during these trips. Control test consistent with applicant being either employee or independent contractor. Applicant integrated into crew while at sea but not during trips off. Fundamental test favoured applicant being employee as respondent deducted PAYE and paid applicant’s ACC levies and air travel, applicant not registered for GST and did not submit invoices. Fact respondent did not make payments specified as holiday pay did not weigh against employment relationship. While fact applicant stood to make more money if catch share increased could indicate relationship of independent contractor, catch share arrangements also feature of some employed fishers’ payment arrangements. Industry practice changed since previous Employment Court decision that independent contractors commercial norm in fishing industry. Applicant’s crewmates engaged and employed under variety of different arrangements and some employees entitled to bonus payment based on catch share. Applicant employee.;PRACTICE AND PROCEDURE: Respondent UF’s agent in relation to management of vessel and payment of crew. Any branding on boxes or documentation on vessel not evidence of contract between applicant and UF. Applicant’s conversations with crewmates not sufficient to show applicant knew engaged by respondent and UF jointly. Respondent’s involvement in vessel management not sham to allow UF to avoid responsibility to applicant and no evidence UF exercised any control or direction over applicant. No evidence applicant told by respondent during applicant’s employment that respondent agent for UF and that UF applicant’s employer. Applicant employed by respondent.;UNJUSTIFIED DISMISSAL: Initial EA between parties not valid fixed term agreement as fixed term provision was for purpose of assessing applicant’s suitability for permanent employment, EA did not advise applicant when or how employment would end and did not advise applicant reason for ending employment that way. No formal disciplinary process regarding passing on of confidential information and no performance review or disciplinary process to deal with applicant’s performance. No real opportunity for applicant to respond to respondent’s concerns. Respondent did not interview other crew members about leaking of information to respondent’s competitor. Counter intuitive applicant would divulge profitable fishing spots to respondent’s competitor when this could reduce applicant’s payments based on percentage of catch. Not possible to say fair and reasonable employer would have concluded applicant’s level of work performance had decreased. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $71,973 reimbursement of lost wages. Interest payable. $8,000 compensation appropriate. |
| Result | Applications granted ; Reimbursement of lost wages ($71,973.86) ; Interest (5%) ; Compensation for humiliation etc ($8,000) ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6;ERA s6(2);ERA s6(3);ERA s66;ERA s66(2)(b);ERA s66(3)(b);ERA s66(4);ERA s66(4)(a);ERA s66(4)(b);ERA s66(6);ERA s103A;ERA s124;ERA s128;ERA s128(2);ERA s128(3);ERA Second Schedule cl11;Judicature Act 1908 s87(3) |
| Cases Cited | Air New Zealand Ltd v Hudson [2006] ERNZ 415;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;Cuttance (t/a Olympus Fitness Centres) v Purkis [1994] 2 ERNZ 321;Golden Plains Fodder Australia Pty Ltd v Millard (2007) 99 SASR 461;Hutton v Provencocadmus Ltd (in rec) [2012] NZEmpC 207;McDonald v Ontrack Infrastructure Ltd [2010] ERNZ 223;Muollo v Rotaru [1995] 2 ERNZ 414;Murphy t/a Enzo’s Pizza v Van Beek [1998] 2 ERNZ 607;NZ (with exceptions) Food Processing etc IUOW v Unilever New Zealand Ltd (1990) ERNZ Sel Cas 582;Sealord Group Ltd v New Zealand Fishing Industry Guild Inc [2005] ERNZ 535;Schneller v Ranworth Healthcare Ltd (2007) 4 NZELR 463;Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315 |
| Number of Pages | 33 |
| PDF File Link: | 2013_NZERA_Christchurch_161.pdf [pdf 328 KB] |