| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 72 |
| Hearing date | 10 Mar 2015 |
| Determination date | 12 March 2015 |
| Member | R Arthur |
| Representation | F Kubesch (in person) ; C Baumann |
| Parties | Kubesch v The Cabinet Place Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor - UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed unjustifiably dismissed by respondent – Respondent alleged poor performance regarding applicant’s attitude and work- Respondent believed applicant casual employee so could be dismissed at will – Whether applicant permanent, casual or fixed-term employee - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Joinery installer and manufacturer |
| Abstract | AUTHORITY FOUND –JURISDICTION: Parties’ agreement (EA) indicated applicant employee. Applicant paid PAYE and received KiwiSaver contributions. Respondent controlled applicant’s work and applicant did not provide invoices. Applicant subject to 90 day trial period. Applicant employee.UNJUSTIFIED DISMISSAL: EA unclear as to type of employment. Applicant worked regular hours so not casual. Applicant had probably not been given EA so could not have agreed to fixed term, EA did not state reasons for fixed term and fixed term would not have been for genuine reasons. Applicant not fixed term employee. Applicant permanent employee. Respondent failed to prove no work for applicant. Respondent failed to raise concerns with applicant, put all relevant information to applicant and allow applicant opportunity to comment. Respondent failed to provide applicant with information adverse to continuation of applicant’s employment. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $4,536 reimbursement of lost wages. $5,000 compensation appropriate.ARREARS OF WAGES AND HOLIDAY PAY: Applicant not paid for several days work and annual leave, and underpaid on other days. Respondent to pay applicant $1,782 arrears of wages and $1,134 arrears of holiday pay. Interest payable. |
| Result | Applications granted ; Reimbursement of lost wages ($4,536) ; Compensation for humiliation etc. ($5,000) ; Arrears of wages ($1,782) ; Arrears of holiday pay ($1,134) ; Interest (5%); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(b);ERA s4(1A)(c);ERA s6;ERA s63(2);ERA s66;ERA s66(3)(b);ERA s67;ERA s67A;ERA s67B;ERA s131;ERA s174E;ERA Second Schedule cl11;Holidays Act 2003 s23;Holidays Act 2003 s28;Judicature (Prescribed Rate of Interest) Order 2011 cl4 |
| Cases Cited | Allen v Transpacific Industries Group Ltd (t/a Medismart Ltd) (2009) 6 NZELR 530 (EmpC);Blackmore v Honick Properties Ltd [2011] NZEmpC 152, [2001] ERNZ 445;Jinkinson v Oceana Gold (NZ) Ltd [2009] ERNZ 225 (EmpC);Rush Security Services Ltd v Samoa [2011] NZEmpC 76, [2011] ERNZ 529;Telecom New Zealand v Nutter [2004] 1 ERNZ 315 (CA);Trotter v Telecom [1993] 2 ERNZ 659 (EmpC) |
| Number of Pages | 16 |
| PDF File Link: | 2015_NZERA_Auckland_72.pdf [pdf 339 KB] |