| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 17 |
| Hearing date | 21 Nov 2014 |
| Determination date | 12 February 2015 |
| Member | Christine Hickey |
| Representation | A Sharma ; S Steele |
| Location | Nelson |
| Parties | Blincoe v Waste Contractors Ltd |
| Summary | JURISDICTION - Whether applicant employee or independent contractor - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - ARREARS OF HOLIDAY PAY - Applicant sought arrears of holiday pay - PENALTY - GOOD FAITH - Applicant sought penalty for respondent's breach of good faith - Driver |
| Abstract | AUTHORITY FOUND -;JURISDICTION: Presence of non-competition and non-solicitation clauses in parties' agreement neutral factor. Contractor agreement contained provisions more indicative of employment relationship. Applicant did not have to submit invoices. Applicant not responsible for finding cover when on holiday. Respondent's provision of truck and other necessary materials, as well as ability to direct applicant's daily workload and schedule, pointed towards employment relationship. Control test favoured employment relationship. Requirement to wear uniform neutral factor. Applicant's work integral part of respondent's business through regular roster pattern and requirement for applicant to cover when other drivers on holiday. Applicant did not set out to obtain tax advantages for self. Applicant not in business on own account. Applicant employee.;UNJUSTIFIED DISMISSAL: No real attempt to investigate respondent's suspicions that applicant had narked" on business. Respondent's numerous apparent dissatisfactions with applicant's work not raised with applicant as matters that could lead to dismissal. Dismissal predetermined. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $15,488 reimbursement of lost wages. Interest payable. $8,500 compensation appropriate.;ARREARS OF HOLIDAY PAY: No agreement that applicant could take additional week of paid leave above four weeks' entitlement to annual leave. Applicant entitled to payment of three weeks' leave accrued and not taken. Respondent to pay applicant $2,769 arrears of holiday pay. Interest payable.;PENALTY - GOOD FAITH: Respondent breached duty of good faith but dismissal of applicant based on genuine view that applicant independent contractor. No penalty." |
| Result | Applications granted (jurisdiction)(unjustified dismissal)(arrears of holiday pay) ; Reimbursement of lost wages ($15,488.52) ; Arrears of holiday pay ($2,769.24) ; Interest (5%) ; Compensation for humiliation etc ($8,500) ; Application dismissed (penalty - good faith) ; Disbursements in favour of applicant ($71.56)(filing fee) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1);ERA s6(1)(a);ERA s6(2);ERA s6(3)(a);ERA s6(3)(b);ERA s103A;ERA s122;ERA s124;ERA s128(2);ERA s128(3);ERA Second Schedule cl11;Holidays Act 2003;Judicature Act 1908 s87(3) |
| Cases Cited | Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721;Grace Team Accounting Ltd v Brake [2014] NZCA 541 |
| Number of Pages | 19 |
| PDF File Link: | 2015_NZERA_Christchurch_17.pdf [pdf 1.9 MB] |