| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 198 |
| Hearing date | 2 Apr 2014 |
| Determination date | 21 May 2014 |
| Member | K J Anderson |
| Representation | M Penny ; D Grace |
| Location | Hamilton |
| Parties | Watson v DSN Ltd (in liq) |
| Summary | JURISDICTION - Whether applicant employee or independent contractor - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Allegation of theft - Trespass notice - Threatened complaint to Police - ARREARS OF WAGES - Applicant sought arrears of wages - RECOVERY OF MONIES - Applicant sought recovery of fuel expenses - COSTS - Applicant sought contribution towards costs - Seminar trainer |
| Abstract | AUTHORITY FOUND -;JURISDICTION: Documents signed by applicant did not comply with requirements of Employment Relations Act 2000 relating to employment agreements but pointed substantially towards employment relationship. Possible respondent made mistake in providing applicant with documents rather than independent sub-contractor agreement used by other promotion/sales people but respondent's managing director signed documents relating to applicant and no issue raised about documents until day of investigation meeting. Overall circumstances pertaining to parties' relationship confusing and unusual but more probable than not employment relationship existed. Applicant employee.;UNJUSTIFIED DISMISSAL: Applicant dismissed by text message. Issues not discussed with applicant in appropriate manner and no opportunity for applicant to provide explanation. Dismissal unjustified. REMEDIES: No contributory conduct. $4,000 compensation appropriate.;ARREARS OF WAGES: Evidence related to claim inconclusive. No arrears of wages.;RECOVERY OF MONIES: Respondent to pay applicant $80 recovery of monies.;COSTS: Less than one day investigation meeting. Respondent to pay applicant $1,200 contribution towards costs. |
| Result | Applications granted (jurisdiction)(unjustified dismissal)(recovery of monies) ; Compensation for humiliation etc ($4,000) ; Recovery of monies ($80) ; Costs in favour of applicant ($1,200) ; Application dismissed (arrears of wages) |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s6(3);ERA s103A(3);ERA s124 |
| Cases Cited | Allen v Transpacific Industries Group Ltd (t/as Medismart Ltd) (2009) 6 NZELR 530;Radius Residential Care Ltd v McLeay [2010] ERNZ 371 |
| Number of Pages | 10 |
| PDF File Link: | 2014_NZERA_Auckland_198.pdf [pdf 205 KB] |