| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 487 |
| Hearing date | 7 Oct 2014 |
| Determination date | 01 December 2014 |
| Member | TG Tetitaha |
| Representation | R Ali ; T L Clarke, S L Maxfield |
| Location | Auckland |
| Parties | Wharemate v New Zealand Forests Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed by respondent – Non-provision of work – Whether applicant casual employee – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Truck driving and water blasting services |
| Abstract | AUTHORITY FOUND –;JURISDICTION: Impossible to establish any common intention about parties’ working arrangement in absence of written agreement. Applicant not hired to assist respondent’s contractor. Respondent controlled how, where and when work was done and how much was paid to applicant. Truck driving still part and parcel of respondent’s business even though respondent not in business of truck driving. Contractor driver daily logs and invoices were respondent’s documentation rather than applicant’s. Arrangement did not involve equal bargaining power. Applicant received no benefit from any taxation arrangement as independent contractor. Applicant did not perform services for respondent as person in business on own account. Applicant employee.;RAISING PERSONAL GRIEVANCE: Applicant’s evidence as to when respondent stopped offering work accepted. Grievance raised within 90 days.;UNJUSTIFIED DISMISSAL: Evidence showed mutual employment related obligations over period of applicant’s employment. Variable hours and days of work did not negate ongoing employment relationship. Applicant believed required to be available to undertake work and not told by respondent expressly that should not expect further work. Applicant permanent employee albeit with employment for unspecified days and hours. Applicant dismissed by non-provision of work. Dismissal abrupt without meeting procedural requirements. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $567 reimbursement of lost wages. $1,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: No additional wages owing given applicant had ongoing employment for unspecified days and hours. No arrears of wages. Applicant entitled to holiday pay. Respondent to pay applicant $272 arrears of holiday pay. |
| Result | Applications granted (jurisdiction)(raising personal grievance)(unjustified dismissal)(arrears of holiday pay) ; Reimbursement of lost wages ($567.08) ; Compensation for humiliation etc ($1,000) ; Arrears of holiday pay ($272.20) ; Application dismissed (arrears of wages) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s6;ERA s6(1)(a);ERA s6(1)(b);ERA s6(2);ERA s103A;ERA s114;ERA s124;ERA s128;ERA s131;Holidays Act 2003 s23(2) |
| Cases Cited | Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248;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;Carter Holt Harvey Ltd v Yukich [2005] ERNZ 300;Clark v Northland Hunt Inc (2006) 4 NZELR 23;Jinkinson v Oceana Gold (NZ) Ltd [2009] ERNZ 225;Lee v Minor Developments Ltd t/a Before Six Childcare Centre unreported, Shaw J, 23 December 2008, AC52/08;New Zealand Institute of Fashion Technology v Aitken [2004] 2 ERNZ 340 |
| Number of Pages | 15 |
| PDF File Link: | 2014_NZERA_Auckland_487.pdf [pdf 194 KB] |