| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2015] NZERA Wellington 36 |
| Hearing date | 21 Jan 2015 |
| Determination date | 10 April 2015 |
| Member | G J Wood |
| Representation | Q Haines ; R Gibson |
| Location | Wellington |
| Parties | Moore-Jones v Ariki New Zealand Ltd |
| Summary | JURISDICTION - Whether applicant employee or independent contractor - Whether independent contractor arrangement became employment relationship - UNJUSTIFIED DISMISSAL - Constructive Dismissal - Applicant claimed unjustifiably dismissed by respondent - Attempts to recover commission overpayments - Attempts to change nature of relationship - COUNTERCLAIM - RECOVERY OF MONIES - Respondent sought recovery of commission overpaid to applicant - Sales representative |
| Abstract | AUTHORITY FOUND -;JURISDICTION: Respondent's statements indicated parties implemented applicant's proposal for applicant to become employee when applicant placed on payroll. Parties intended applicant become employee. Respondent had right of control over applicant's work. No prospect of applicant subcontracting work. Applicant not integrated into respondent through uniform or other method of identification but still part of respondent. Significant factors in terms of control and integration tests inconsistent with employment relationship insufficient to negate employment relationship. Applicant not in business on own account. Applicant paid as employee. Fundamental test more consistent with employment relationship. Applicant employee.;UNJUSTIFIED DISMISSAL: Respondent entered into unlawful form of self help by denying applicant payment of commissions on new clients knowing applicant in difficult financial situation and despite applicant drawing importance of payments to respondent's attention. Respondent main cause of delays in dealing with matter over number of months. Although not breach of duty of itself, respondent sought to change fundamental nature of relationship in number of ways. Reasonably foreseeable applicant would resign. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. Leave reserved for parties to return to Authority if unable to determine quantum. $10,000 compensation appropriate.;COUNTERCLAIM - RECOVERY OF MONIES: Equitable for applicant to repay commission overpayment given applicant awarded sum greater than that owed to respondent. Applicant to pay respondent $11,872 recovery of monies. |
| Result | Applications granted ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($10,000) ; Recovery of monies ($11,872.01) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s6;Judicature Act 1908 s94A;Judicature Act 1908 s94B |
| Cases Cited | A Mark Publishing New Zealand Ltd v Kendal EmpC Christchurch C10/95, 14 August 1995;Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union of Workers (Inc) [1994] 2 NZLR 415 (CA);Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721;Chief of Defence Force v Ross-Taylor [2010] NZEmpC 22, [2010] ERNZ 61;Foai v Air New Zealand Ltd [2012] NZEmpC 57, [2012] ERNZ 229;Tsoupakis v Fendalton Construction Ltd EmpC Wellington WC16/09, 18 June 2009 |
| Number of Pages | 13 |
| PDF File Link: | 2015_NZERA_Wellington_36.pdf [pdf 198 KB] |