| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 218 |
| Hearing date | 29-Jun-16 |
| Determination date | 01 July 2016 |
| Member | Tania Tetitaha |
| Representation | E Burke ; G Rogers |
| Location | Hamilton |
| Parties | Thomson v Arrow Marking Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – UNJUSTIFIED DISMISSAL – Dismissal - Applicant claimed unjustifiably dismissed by respondent – Summary dismissal - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – PENALTY – Applicant sought penalty for failure to provide wage and time records |
| Abstract | AUTHORITY FOUND –;JURISDICTION: No clear intention as to relationship. Respondent set applicant’s work and required applicant to turn up for work daily, although no great supervision. Some control over applicant. Applicant used respondent’s equipment and did important work. No outward sign that applicant contractor. Applicant employed by respondent.;UNJUSTIFIED DISMISSAL: Tests in s103A Employment Relations Act 2000 not met. Dismissal unjustified. REMEDIES: 25 per cent contributory conduct. Respondent to pay applicant $1,380 reimbursement of lost wages. $7,500 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Respondent failed to pay applicant profit as required. Respondent to pay applicant arrears of wages and holiday pay, quantum to be determined.;PENALTY: Parties needed determination about employment status before obligation to provide wage and time records confirmed. No penalty. |
| Result | Applications granted (unjustified dismissal)(arrears of wages and holiday pay) ; Contributory conduct (25%) ; Reimbursement of lost wages ($1,380) ; Compensation for humiliation etc ($7,500) ; Arrears of wages and holiday pay (quantum to be determined) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s6(1);ERA s6(2);ERA s6(3;ERA s103A;ERA s124;ERA s128;ERA s130(2);ERA s131 |
| Cases Cited | Bank voor Handel en Scheepvaart NV v Slatford (No 2) [1953] 1 QB 248 (CA);Bryson v Three Foot Six Ltd (No 2) [2005] NZSC 34, [2005] 3 NZLR 721;Curlew v Harvey Norman Stores (NZ) Pty Ltd [2002] 1 ERNZ 114 (EmpC);Hutton v Provencocadmus Ltd (in receivership) [2012] NZEmpC 207, [2012] ERNZ 566;Inspector of Awards and Agreements v Religious Society of Friends (Quakers) Wellington Monthly Meeting [1984] ACJ 409 (AC) |
| Number of Pages | 10 |
| PDF File Link: | 2016_NZERA_Auckland_218.pdf [pdf 177 KB] |