| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2016] NZERA Christchurch 75 |
| Hearing date | 15-Mar-16 |
| Determination date | 09 June 2016 |
| Member | David Appleton |
| Representation | M McDonald ; Ben Harley |
| Location | Christchurch |
| Parties | Furze v Harley Interior Plasterers Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed constructively dismissed by respondent – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Labourer |
| Abstract | AUTHORITY FOUND -;JURISDICTION: Applicant treated as contractor for tax purposes. Applicant was supplied with equipment, covered by insurance and subject to respondent’s control. Factors outweighed suggestion applicant independent contractor. Applicant employee.;UNJUSTIFIED DISMISSAL: Respondent imposed condition knowing applicant could not reasonably comply with. Applicant considered being dismissed. Ultimatum for continuation of employment constituted dismissal. Respondent’s actions not fair and reasonable employer in circumstances. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $12,422 reimbursement of lost wages. $10,000 compensation for humiliation etc appropriate. Recommended respondent produce draft proposed agreements to prospective workers and express concerns about conduct in person.;ARREARS OF WAGES AND HOLIDAY PAY: Respondent produced no wage and time records. Respondent to pay applicant $694 arrears of wages and $1,462 arrears of holiday pay. |
| Result | Applications granted ; Arrears of wages ($694) ; Arrears of holiday pay ($1,462.88) ; Reimbursement of lost wages ($12,422) ; Compensation for humiliation etc ($10,000) ; Recommendations made ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s6;ERA s6(1)(a);ERA s6(2);ERA s65;ERA s103A;ERA s103A(3);ERA s123(1)(c)(i);ERA s123(1)(ca);ERA s124;ERA s128;ERA s131;ERA s132;Holidays Act 2003 s23;Holidays Act 2003 s63(1)(b);Holidays Act 2003 s69(2)(b);Holidays Act 2003 s81;Holidays Act 2003 s82;Holidays Act 2003 s83(4) |
| Cases Cited | Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 |
| Number of Pages | 22 |
| PDF File Link: | 2016_NZERA_Christchurch_75.pdf [pdf 242 KB] |