| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 507 |
| Hearing date | 8 Dec 2014 |
| Determination date | 09 December 2014 |
| Member | R Larmer |
| Representation | C Pidduck v no appearance |
| Location | Tauranga |
| Parties | Duxbury v Smith and Coombes Ltd t/a Corporate Angels |
| Summary | JURISDICTION - Whether applicant employee or independent contractor - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - PENALTY - Applicant sought penalty for respondent's failure to provide wage and time records on request - COSTS - Applicant sought contribution towards costs - No appearance for respondent - General administrator |
| Abstract | AUTHORITY FOUND -;JURISDICTION: No written employment agreement or wage and time records. Fact respondent represented applicant as employee to Inland Revenue Department and deducted PAYE indicated employment relationship. Mutual intention that applicant employee. No evidence applicant in business on own account. Way arrangement operated in practice indicated employment relationship. Significant degree of control exerted over applicant. Applicant integrated into respondent's business. Applicant employee.;ARREARS OF WAGES AND HOLIDAY PAY: Appropriate to accept applicant's claims as proved in absence of wage and time records. Applicant entitled to be paid for unpaid hours worked, for working on public holiday and unpaid holiday pay. Respondent to pay applicant $11,076 arrears of wages and $1,528 arrears of holiday pay.;PENALTY: Penalty appropriate to punish respondent for not complying with legal requirements and to deter others. $1,000 penalty appropriate.;COSTS: Less than one day investigation meeting. Appropriate to increase notional daily tariff due to respondent's refusal to attend mediation and argument that applicant not employee in spite of all evidence pointing to contrary. Respondent to pay applicant $1,500 contribution towards costs. |
| Result | Applications granted ; Arrears of wages ($11,076) ; Arrears of holiday pay ($1,528) ; Penalty ($1,000)(payable to Crown) ; Costs in favour of applicant ($1,500) ; Disbursements in favour of applicant ($71.56)(filing fee)($153.72)(counsel's travel)($160.16)(counsel's mileage)($844.10)(accountant's report) |
| Main Category | Arrears |
| Statutes | ERA s6;ERA s6(2);ERA s6(3);ERA s130(2);ERA s132;ERA s132(2) |
| Number of Pages | 9 |
| PDF File Link: | 2014_NZERA_Auckland_507.pdf [pdf 112 KB] |