| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2017] NZERA Christchurch 172 |
| Hearing date | 10-Aug-17 |
| Determination date | 09 October 2017 |
| Member | P van Keulen |
| Representation | J Ongley ; T Twomey |
| Location | Christchurch |
| Parties | Labour Inspector v Dai's Food Ltd |
| Summary | JURISDICTION – Whether Ms Dai was an employee – ARREARS OF HOLIDAY PAY – Applicant sought arrears of holiday pay – RECOVERY OF MONIES – Applicant sought recovery of wages unlawfully deducted – PENALTY – Applicant sought penalties for respondent’s breaches of ERA, Holidays Act 2003, Wages Protection Act 1983 and Minimum Wage Act 1983 |
| Abstract | AUTHORITY FOUND –;JURISDICTION: Ms Dai’s interaction with respondent product of de facto relationship not employment relationship. Common intention not employment relationship. Respondent lacked control over Ms Dai’s activities. Ms Dai not integrated into business. Ms Dai paid salary only to formalise money being received from company. No employment relationship.;ARREARS OF HOLIDAY PAY: No arrears of holiday pay.;RECOVERY OF MONIES: Respondent did not have authorisation to deduct money from employee’s wages. Respondent to pay applicant $653 recovery of monies.;PENALTY: Respondent failed to provide one employee with employment agreement. Respondent failed to keep wage and time records for one employee. Respondent made unauthorised deduction from employee’s wages and failed to pay minimum wage. Respondent failed to keep holiday and leave records for seven employees. Respondent failed to pay four employees correct pay for public holidays. Breaches not intentional. Shortfalls subsequently paid. Otherwise compliant employer. Respondent cooperated with Labour Inspector. $14,400 penalty appropriate. |
| Result | Applications granted (penalty)(recovery of monies) ; Penalty ($14,400)(payable to Crown) ; Recovery of monies ($653.81) ; Application dismissed (arrears of holiday pay) ; Costs reserved |
| Main Category | Penalty |
| Statutes | ERA s6 ; ERA s63A ; ERA s64 ; ERA s130 ; ERA s133A ; Holidays Act 2003 s23 ; Holidays Act 2003 s17(1)(b) ; Holidays Act 2003 s49 ; Holidays Act 2003 s81 ; Minimum Wage Act 1983 s6 ; Wages Protection Act 1983 s13 |
| Cases Cited | Atkinson v Phoenix Commercial Cleaners Ltd [2015] NZEmpC 19;Borsboom v Preet PVT Ltd [2016] NZEmpC 143;Bryson v Three Foot Six Ltd [2003] 1 ERNZ 581 (EmpC);Bryson v Three Foot Six Ltd (No 2) [2005] NZSC 34;Labour Inspector v Direct Auto Importer (NZ) Ltd [2017] NZERA Auckland 195;Lakhera v Kings Curry House Ltd [2017] NZERA Christchurch 105;Labour Inspector v Wyatt Farms Ltd [2017] NZERA Christchurch 100;Labour Inspector v White Developments Ltd [2017] NZERA Christchurch 87;Lumsden v Skycity Management Ltd [2017] NZEmpC 30;Singh v Eric James & Associates Ltd [2010] NZEmpC 1 |
| Number of Pages | 14 |
| PDF File Link: | 2017_NZERA_Christchurch_172.pdf [pdf 258 KB] |