| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 188 |
| Hearing date | 29 Jun 2016 - 30 Jun 2016, 1 Jul 2016 and 11 Jul 2016 (4 days) |
| Determination date | 03 July 2017 |
| Member | N Craig |
| Representation | S Eden, E Latimer-Bell ; E Butcher, A Evans |
| Location | Auckland |
| Parties | Chang v World TV Ltd |
| Summary | JURISDICTION - Whether applicant performed work for respondent in dual capacity as both employee and contractor - Respondent claimed internal work was performed as employee and paid by salary, and external work performed as contractor and paid by commission and bonus - UNJUSTIFIED DISMISSAL - Dismissal - Applicant claimed unjustifiably dismissed by respondent - ARREARS OF WAGES - Applicant sought arrears of commission and bonuses - Chief Operating Officer |
| Abstract | AUTHORITY FOUND -;JURISDICTION: Payments did not relate to different types of work. External work did not relate to commission. Applicant did not have two titles. Hours spent between internal and external functions intermingled. Applicant did not work for other companies and expenses paid for by respondent. Other directors saw putative employee and contractor roles inextricably linked. Any distinction was artificial. Applicant could claim for various payments as employee.;UNJUSTIFIED DISMISSAL: Applicant’s decision to sell shares predominant reason for dismissal. Applicant not put on notice that behaviour was unacceptable and need to improve. Limited evidence of redundancy. Applicant did not have opportunity to comment on allegations. Allegations against applicant not sufficiently investigated, concerns not raised with applicant and no opportunity for applicant to respond. Senior nature of applicant’s position did not justify procedural inadequacies. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $30,000 reimbursement of lost wages. $17,000 compensation appropriate. $132,706 loss of future commission appropriate.;ARREARS OF WAGES: Applicant not owed commission regarding an agreement between China Radio International and respondent. Respondent to pay applicant $289,231 arrears of wages for March 2016 and further quantum to be determined for April 2016. Respondent to pay applicant 5% bonus based on respondent’s profit for years ending March 2015 and March 2016, quantum to be determined. |
| Result | Application granted ; Reimbursement of lost wages ($30,000) ; Compensation for humiliation etc ($17,000) ; Compensation for loss of benefit ($132,706.92)(future commission) ; Arrears of wages ($289,231.35 - March 2016) (quantum to be determined - April 2016) (quantum to be determined - 5% bonus) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(1) ; ERA s103A(2) ; ERA s103A(3) ; ERA s128(2) ; ERA s128(3) ; ERA s174C(3)(a) ; ERA s174C(4) ; ERA s174E |
| Cases Cited | Centre for Advanced Medicine Ltd v Sprott EmpC Auckland AC20/05, 10 May 2005;Harris v Warehouse Ltd [2014] NZEmpC 188, [2014] ERNZ 480;Lee v Lee's Air Farming Ltd [1961] NZLR 325 (PC);TRA No 94/047 (1996) 17 NZTC 7,393 (TRA);Xtreme Dining Ltd v Dewar [2016] NZEmpC 136, (2016) 10 NZELC 79-069 |
| Number of Pages | 27 |
| PDF File Link: | 2017_NZERA_Auckland_188.pdf [pdf 321 KB] |