| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2014] NZERA Wellington 42 |
| Hearing date | 16 Apr 2014 |
| Determination date | 28 April 2014 |
| Member | M Ryan |
| Representation | P Cullen ; M Gould |
| Location | Wellington |
| Parties | Hanson v Crowe Construction and Associates Ltd and Anor |
| Other Parties | Crowe |
| Summary | INJUNCTION - Applicant sought interim reinstatement - Whether respondent breached Parental Leave and Employment Protection Act 1987 by failing to keep applicant's position open - Whether applicant became director / shareholder of respondent - Whether dysfunctional relationships - Close-knit office - Whether applicant dismissed or walked away from respondent |
| Abstract | AUTHORITY FOUND -;INJUNCTION: Evidence applicant paid provisional tax rather than PAYE and received final wages and holiday pay not determinative of applicant's employment status in circumstances where no dispute applicant ceased collecting weekly wages and commenced on salary. Arguable case applicant continued to be employee. Strongly arguable applicant unjustifiably dismissed. No evidence that serious misconduct or poor performance featured as basis for respondent's instruction that applicant to stay away from work place. Applicant's work continued to be performed by others. Arguable case for permanent reinstatement although strength of case marginal and compromise required to restore harmonious relationship between parties. Applicant's employment status yet to be determined. Applicant's financial concerns able to be met by award of lost remuneration and no evidence respondent unable to meet future award of damages. Applicant away from workplace for around one year and investigation meeting scheduled for three weeks' time. Balance of convenience favoured respondent. Inappropriate to impose employment relationship in circumstances where unresolved dispute about true nature of relationship. Overall justice of case against interim reinstatement. Application for interim reinstatement dismissed. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA;ERA s103A;ERA s125;ERA s127;ERA s127(1);ERA s127(4);Parental Leave and Employment Protection Act 1987 |
| Cases Cited | Angus v Ports of Auckland Ltd [2011] ERNZ 292;Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;McKean v Ports of Auckland Ltd [2011] ERNZ 311;Smith v Practical Plastics Ltd [1998] 1 ERNZ 323;Wellington Free Ambulance Service Inc v Adams [2010] NZEmpC 59 |
| Number of Pages | 12 |
| PDF File Link: | 2014_NZERA_Wellington_42.pdf [pdf 178 KB] |