| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 201 |
| Hearing date | 26-Nov-15 |
| Determination date | 17 December 2015 |
| Member | Helen Doyle |
| Representation | S Richardson ; P Te Amo |
| Location | Christchurch |
| Parties | Porter v Complete Siteworks Company Ltd |
| Summary | JURISDICTION – Whether employee or independent contractor – UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed – Summary dismissal – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages – RECOVERY OF MONIES – Applicant sought recovery of monies for expenses incurred on respondent’s behalf – PENALTY – GOOD FAITH – Applicant sought penalty for breach of good faith, failure to provide employment agreement (“EA”) and failure to keep records - Cook/housekeeper |
| Abstract | AUTHORITY FOUND –;JURISDICTION: Evidence not sufficient to show common intention of parties regarding applicant’s employment status. No written agreement between parties. Respondent did not pay PAYE on applicant’s behalf. Applicant not registered for GST. No apparent discussion about tax at all. Respondent had level of control over applicant’s work. Applicant did not provide own tools or equipment. Applicant integral to respondent’s business. Fundamental test indicated applicant employee. Applicant under impression relationship one of employment. Applicant employee.;UNJUSTIFIED DISMISSAL: Respondent dismissed applicant by text message without warning. Procedural requirements and good faith obligations not met. Respondent claimed that applicant’s services no longer needed, but that not apparent to applicant. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $2,880 reimbursement of lost wages. $6,000 compensation for humiliation etc appropriate. $230 compensation for loss of benefit of holiday pay appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant entitled to be paid for days she was supposed to work and was available to work. Respondent did not pay applicant for public holidays that would otherwise have been working days during period when applicant required to take leave. Respondent did not pay applicant time and half for public holidays actually worked. Respondent to pay applicant $288 arrears of wages and $487 arrears of wages.;RECOVERY OF MONIES: Respondent failed to repay applicant for purchases made by applicant on respondent’s behalf, even though applicant provided receipt. Respondent to pay applicant $28 recovery of monies.;PENALTY: Respondent genuinely believed applicant independent contractor, although respondent could have been more responsive when applicant raised concerns. No penalty. |
| Result | Applications granted (jurisdiction)(unjustified dismissal)(arrears of wages and holiday pay)(recovery of monies) ; Reimbursement of lost wages ($2,880) ; Compensation for humiliation etc ($6,000) ; Compensation for loss of benefit ($230.40) ; Arrears of wages ($288) ; Arrears of holiday pay ($487.32) ; Recovery of monies ($28.34) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s6;ERA s6(3)(a);ERA s103A;ERA s103A(a);ERA s103A(b);ERA s103A(c);ERA s103A(d);Holidays Act 2003 s49 |
| Cases Cited | Bryson v Three Foot Six Ltd (No 2) [2005] NZSC 34, [2005] 3 NZLR 721 |
| Number of Pages | 16 |
| PDF File Link: | 2015_NZERA_Christchurch_201.pdf [pdf 208 KB] |