| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 277 |
| Hearing date | 28/07/2016 |
| Determination date | 18 August 2016 |
| Member | Nicola Craig |
| Representation | N Berryman; no appearance |
| Location | Auckland |
| Parties | Paalvast v Elmstone Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor - PRACTICE AND PROCEDURE – Whether applicant casual or permanent employee – UNJUSTIFIED DISMISSAL – Redundancy - Applicant claimed unjustifiably dismissed by respondent - ARREARS OF HOLIDAY PAY – Applicant sought arrears of holiday pay – COSTS – Applicant sought contribution to costs |
| Abstract | AUTHORITY FOUND –JURISDICTION: No written employment agreement. Parties did not discuss applicant’s employment status before beginning work. Evidence indicated parties intended applicant to be employee. No other staff independent contractors. Applicant worked under direct supervision. Work integral to business. Applicant did not have to provide equipment. Independent contractors not common in industry. Applicant employee.PRACTICE AND PROCEDURE: Redundancy notice stated that applicant casual but also provided two week notice period, which suggested permanent employment. Applicant given leave months in advance. Applicant worked regularly, although with flexible hours. Applicant permanent employee.UNJUSTIFIED DISMISSAL: Part of business in which applicant worked closed down. Redundancy genuine. Respondent did not give applicant prior notice of possibility of redundancy or consult with applicant. Fair and reasonable employer could not have dismissed applicant by use of text message with no prior discussion and where dismissal to take effect immediately. Respondent failed to explore possibility of redeployment. Dismissal unjustified. REMEDIES: Respondent to pay applicant $6,760 reimbursement of lost wages. $6,000 compensation appropriate.ARREARS OF HOLIDAY PAY: Applicant did not receive any holiday pay. Respondent to pay applicant $208 arrears of holiday pay.COSTS: Less than half day investigation meeting. Appropriate to apply uplift in notional daily tariff to reflect need to adjourn investigation meeting at short notice. Respondent to pay applicant $2,500 contribution to costs. |
| Result | Applications granted ; Reimbursement of lost wages ($6,760) ; Compensation for humiliation etc ($6,000) ; Arrears of holiday pay ($208) ; Costs in favour of applicant ($2,500) ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s4 ; ERA s6(1) ; ERA s6(2) ; ERA s6(3) ; ERA s103A ; ERA s128(2) ; ERA s174E |
| Cases Cited | Grace Team Accounting Ltd v Brake [2014] NZCA 541, [2015] 2 NZLR 494 ; Koia v Carlyon Holdings Ltd [2001] ERNZ 585 (EmpC) |
| Number of Pages | 14 |
| PDF File Link: | 2016_NZERA_Auckland_277.pdf [pdf 183 KB] |