| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 276 |
| Hearing date | 20-May-15 |
| Determination date | 10 September 2015 |
| Member | Vicki Campbell |
| Representation | J Turner ; no appearance |
| Location | Auckland |
| Parties | O'Sullivan v Stargate Operations Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor - UNJUSTIFIED DISMISSAL – Constructive Dismissal - Applicant claimed unjustifiably dismissed by respondent - BREACH OF CONTRACT – Applicant claimed respondent breached employment agreement (“EA”) and duty of good faith by failing to pay agreed money to IRD - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wage and holiday pay – COUNTERCLAIM – RECOVERY OF MONIES – Respondent sought recovery of monies for use of fuel card and health insurance – No appearance for respondent – General Manager |
| Abstract | AUTHORITY FOUND –;JURISDICTION: Intention of parties inconclusive. Respondent provided applicant with all tools required to do job. Applicant worked regular hours. Applicant’s role integral to business but could have been performed by employee or contractor. Applicant worked solely and full-time for respondent. Applicant made to sign EA. Applicant employed by respondent.;UNJUSTIFIED DISMISSAL: More likely than not applicant no longer wished to be employed by respondent and resigned. No dismissal.;BREACH OF CONTRACT: EA required respondent to pay money to IRD on applicant’s behalf. Respondent failed to do so and breached EA and good faith. No remedies sought. No damages.;ARREARS OF WAGES AND HOLIDAY PAY: No basis to applicant’s claim for four weeks’ unpaid notice. Respondent accepted applicant owed $15,000 arrears of wages. Respondent failed to provide accurate wage and time records regarding holiday pay, so applicant’s evidence accepted as proved. Respondent to pay applicant $15,000 arrears of wages and $72,000 arrears of holiday pay. Interest payable.;COUNTERCLAIM – RECOVERY OF MONIES: Claim dismissed in absence of respondent. No recovery of monies. |
| Result | Application granted (jurisdiction)(arrears of wages and holiday pay) ; Arrears of wages ($15,000) ; Arrears of holiday pay ($72,000) ; Interest (5%) ; Applications dismissed (unjustified dismissal)(breach of contract)(counterclaim – recovery of monies) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s6(1);ERA s6(3);ERA s132(1);ERA s174E;ERA Second Schedule cl11;ERA Second Schedule cl12;Companies Act 1993 Schedule 7;Judicature Act 1908 s87(3);Judicature (Prescribed Rate of Interest) Order 2011 |
| Cases Cited | Bryson v Three Foot Six Ltd (No 2) [2005] NZSC 34, [2005] 3 NZLR 721;Poulter v Antipodean Growers Ltd [2010] NZEmpC 77, (2010) 7 NZELR 543 |
| Number of Pages | 14 |
| PDF File Link: | 2015_NZERA_Auckland_276.pdf [pdf 223 KB] |