| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 294 |
| Hearing date | 30-Aug-17 |
| Determination date | 22 September 2017 |
| Member | J Trotman |
| Representation | S Austin ; P Vermaak |
| Location | Whakatane |
| Parties | Woods v Lifestyle Projects Consulting Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – UNJUSTIFIED DISMISSAL – Serious Misconduct – ARREARS OF HOLIDAY PAY – Applicant sought arrears of holiday pay – RECOVERY OF MONIES – Applicant sought recovery of unaccounted deductions from wages pursuant to Attachment Orders – PENALTY – Applicant sought penalty for respondent’s breach of good faith obligations – Plasterer/ painter |
| Abstract | AUTHORITY FOUND –;JURISDICTION: Applicant did not pay own expenses, tools, tax or ACC. Respondent represented that applicant employee to third parties. Respondent exercised full control over applicant’s work. Applicant not in business on own account. Applicant employee.;UNJUSTIFIED DISMISSAL: Process leading to applicant’s dismissal defective. No investigation, raising of concerns or opportunity to respond to concerns before dismissal. No genuine consideration of explanation before dismissal. Dismissal unjustified. REMEDIES: 50 per cent contributory conduct. Respondent to pay applicant $6,418 reimbursement of lost wages and $513 reimbursement of lost holiday pay. $6,000 compensation appropriate.;ARREARS OF HOLIDAY PAY: Applicant was not paid for public holidays applicant would otherwise have worked. Applicant did not receive time and a half or an alternative holiday for public holidays worked. Respondent failed to pay holiday pay with applicant’s wages. Respondent to pay applicant $8,376 arrears of holiday pay. Interest payable.;RECOVERY OF MONIES: Respondent to pay Ministry of Justice $70 recovery of monies.;PENALTY: Respondent misled or deceived applicant in relation to deductions it made. Breaches of good faith serious, deliberate and sustained. Applicant suffered no harm from breach. $1,000 penalty appropriate. |
| Result | Applications granted ; Contributory conduct (50%) ; Reimbursement of lost wages and holiday pay ($6,932.25) ; Compensation for humiliation etc ($6,000) ; Arrears of holiday pay ($8,376.65) ; Interest (5%) ; Recovery of monies ($70)(payable to Ministry of Justice) ; Penalty ($750)(payable to applicant)($250)(payable top Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 ; ERA s6 ; ERA s103A; ERA s103A(3) ; ERA s103A(3)(a) ; ERA s103A(3)(b) ; ERA s103A(3)(c) ; ERA s103A(3)(d) ; ERA s103A(5); ERA s124 ; ERA s128(2) ; ERA s128(3) ; Holidays Act 2003 s8 ; Holidays Act 2003 s9A ; Holidays Act 2003 s23 ; Holidays Act 2003 s24(2) ; Holidays Act 2003 s49 ; Holidays Act 2003 s50 ; Holidays Act 2003 s56 ; Holidays Act 2003 s60 ; Holidays Act 2003 s60(2) ; Judicature (Prescribed Rate of Interest) Order 2011 cl4 ; Summary Proceedings Act 1957 s106 ; Summary Proceedings Act 1957 s106A |
| Cases Cited | Bryson v Three Foot Six Ltd (No 2) [2005] NZSC 34;Hall v Dionex Pty Ltd [2015] NZEmpC 29;Lumsden v Skycity Management Ltd [2017] NZEmpC 30;Stormont v Peddle Thorp Aitken Ltd [2017] NZEmpC 71;Xtreme Dinning Ltd v Dewar [2016] NZEmpC 136 |
| Number of Pages | 22 |
| PDF File Link: | 2017_NZERA_Auckland_294.pdf [pdf 307 KB] |