| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 16 |
| Hearing date | 27 Jan 2015 |
| Determination date | 12 February 2015 |
| Member | M B Loftus |
| Representation | C Gordon ; W Meijer, A Helm |
| Location | Christchurch |
| Parties | Wooddin v Meijer and Ors |
| Other Parties | Helm, Structech Ltd |
| Summary | JURISDICTION - Whether applicant employee or independent contractor - Construction industry - PRACTICE AND PROCEDURE - Identity of employer - First and second respondents directors of third respondent - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - UNJUSTIFIED DISMISSAL - Constructive Dismissal - Applicant claimed unjustifiably dismissed by respondents |
| Abstract | AUTHORITY FOUND -;JURISDICTION: No common intention applicant be engaged as contractor. Applicant given instructions as to work to be done and location of work. Control test favoured employment relationship. Substantial tools or pieces of plant provided by third respondent. Applicant's work integral to completion of third respondent's contracts and not ancillary support. Integration test favoured employment relationship. No assistance to be gained from indicators such as tax given none deducted. No documentation supporting existence of contractor relationship. Industry practice no assistance. Applicant employee.;PRACTICE AND PROCEDURE: Applicant employed by third respondent.;ARREARS OF WAGES AND HOLIDAY PAY: Appropriate to accept applicant's claim in absence of wage or time records. Third respondent to pay applicant $4,485 arrears of wages and holiday pay.;UNJUSTIFIED DISMISSAL: Third respondent's failure to pay wages fundamental breach of duty. Failure to pay wages forced applicant to resign. Resignation foreseeable. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Third respondent to pay applicant $7,200 reimbursement of lost wages. $1,000 compensation appropriate. |
| Result | Applications granted (jurisdiction)(arrears of wages and holiday pay)(unjustified dismissal) ; Arrears of wages and holiday pay ($4,485.50) ; Reimbursement of lost wages ($7,200) ; Compensation for humiliation etc ($1,000) ; Application dismissed (practice and procedure) ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s124;ERA s128(2);ERA s130;ERA s132;ERA s132(1) |
| Cases Cited | Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA);Kiwikiwi v Maori Television Service (2007) 5 NZELR 6 (EmpC);Z v A [1993] 2 ERNZ 469 (EmpC) |
| Number of Pages | 10 |
| PDF File Link: | 2015_NZERA_Christchurch_16.pdf [pdf 174 KB] |