| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 295 |
| Hearing date | 29-Aug-16 |
| Determination date | 29 August 2016 |
| Member | T Tetitaha |
| Representation | H Burdon; L Hawley |
| Location | Auckland |
| Parties | Stevenson v The Cutting Krew Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor - UNJUSTIFIED DISMISSAL – Dismissal - Applicant claimed unjustifiably dismissed by respondent – ARREARS OF HOLIDAY PAY – Applicant sought arrears of holiday pay and KiwiSaver – PENALTY – Applicant sought penalty for failure to pay wages – COSTS – Applicant sought contribution to costs - Hairdresser |
| Abstract | AUTHORITY FOUND –JURISDICTION: Applicant had to be at work during salon’s opening hours and respondent set wages. Applicant in sole charge of salon. Integral to respondent’s business. No evidence that applicant in business on own account. Contract offered to applicant set steps for dismissal and continued payment of PAYE. Applicant employed by respondent.UNJUSTIFIED DISMISSAL: Applicant refused to return to work until employment issues could be discussed. Employment terminated by refusal to work. No dismissal.ARREARS OF HOLIDAY PAY: Applicant did not take annual leave during employment. Respondent did not give applicant paid sick leave. No employer KiwiSaver contributions made. Respondent to pay applicant $14,472 arrears of holiday pay and $5,915 arrears of KiwiSaver.PENALTY: Dispute about whether applicant employed. Evidence did not meet test for penalty. No penalty.COSTS: Appropriate to apply uplift for late filing of evidence and additional reply evidence. Respondent to pay applicant $2,250 contribution to costs. |
| Result | Application granted (arrears of holiday pay) ; Arrears of holiday pay ($14,472.93) ; Arrears of KiwiSaver contributions ($5,915.80) ; Applications dismissed (unjustified dismissal)(penalty) ; Costs in favour of applicant ($2,250) |
| Main Category | Personal Grievance |
| Statutes | ERA s6(1) ; ERA s6(2) ; ERA s6(3) ; Wages Protection Act 983 ; Holidays Act 2003 s9A ; Holidays Act 2003 s21 ; Holidays Act 2003 s23 Holidays Act 2003 s66 |
| Cases Cited | Bank voor Handel en Scheepvaart NV v Slatford (No 2) [1953] 1 QB 248 (CA) ; Bryson v Three Foot Six Ltd [2003] 1 ERNZ 581 (EmpC) ; 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) |
| Number of Pages | 8 |
| PDF File Link: | 2016_NZERA_Auckland_295.pdf [pdf 180 KB] |