| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 195 |
| Hearing date | 22 May 2017 - 23 May 2017 (2 days) |
| Determination date | 04 July 2017 |
| Member | A Fitzgibbon |
| Representation | S Blick ; R Harris |
| Location | Hamilton |
| Parties | Labour Inspector v Direct Auto Importers (NZ) Ltd |
| Summary | JURISDICTION - Whether Mr A employee or independent contractor - PENALTY - Applicant sought penalty for respondent’s various breaches of Employment Relations Act 2000, Holidays Act 2003 and Minimum Wage Act 1983 - ARREARS OF HOLIDAY PAY - Applicant sought arrears of holiday pay |
| Abstract | AUTHORITY FOUND -;JURISDICTION: Mr A subject to high degree of control by respondent. Mr A essential to running respondent’s business. Mr A did not issue invoices for work. Mr A employee.;PENALTY: Respondent failed to provide Mr T and Mr A with written employment agreement. Respondent failed to keep wage and time, and holiday and leave records for Mr T, Mr W and Mr A. Respondent did not comply with Holidays Act 2003 when paying out Mr T’s annual leave. Respondent did not pay Mr W time and a half for public holidays. Respondent did not comply with Holidays Act 2003 when paying Mr W’s annual holiday pay with wages. Respondent failed to pay Mr A holiday pay upon termination. $50,000 penalty appropriate.;ARREARS OF HOLIDAY PAY: Respondent to pay Mr W $64 and Mr A $662 arrears of holiday pay. |
| Result | Applications granted ; Arrears of holiday pay ($64)(Mr W) ($662)(Mr A) ; Penalty ($45,000)(crown) ($5,000)(applicant) ; Costs reserved |
| Main Category | Penalty |
| Statutes | ERA s6 ; ERA s65 ; ERA s65(4) ; ERA s75 ; ERA s81 ; ERA s133 ; ERA s136(2) ; ERA s174E ; ERA s229(1) ; Minimum Wage Act 1983 s8A ; Minimum Wage Act 1983 s8 ; Holidays Act 2003 s23(2) ; Holidays Act 2003 s27(2) ; Holidays Act 2003 s28(1) ; Holidays Act 2003 s28A ; Holidays Act 2003 s28A(3) ; Holidays Act 2003 s28B ; Holidays Act 2003 s50 ; Holidays Act 2003 s81 ; Holidays Act 2003 s81(2) |
| Cases Cited | Borsboom v Preet PVT Ltd [2016] NZEmpC 143, (2016) 10 NZELC 79-072;Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721;Carr v Sharma [2016] NZEmpC 151;Kaur v Direct Auto Importers (NZ) Ltd [2016] NZERA Auckland 306;Labour Inspector of the Ministry of Business Innovation and Employment v Cheap Deals on Wheels Ltd [2017] NZERA Auckland 196;Poulter v Antipodean Growers Ltd [2010] NZEmpC 77, (2010) 7 NZELR 543;Singh v Eric James & Associates Ltd [2010] NZEmpC 1;Xu v McIntosh [2004] 2 ERNZ 448 (EmpC) |
| Number of Pages | 24 |
| PDF File Link: | 2017_NZERA_Auckland_195.pdf [pdf 377 KB] |