| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 389 |
| Hearing date | 14-Dec-17 |
| Determination date | 15 December 2017 |
| Member | E Robinson |
| Representation | A Kerjes ; J Hardaker |
| Location | Auckland |
| Parties | Randall v Davys |
| Summary | JURISDICTION – Whether applicant employee or contractor – UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed unjustifiably dismissed by respondent – PENALTY – Applicant sought penalty for respondents breach of duty of good faith and failure to provide employment agreement (“EA”) – Personal Housekeeper |
| Abstract | AUTHORITY FOUND –;JURISDICTION: Applicant understood herself to be an employee. Understanding supported request for payslip from respondent. Applicant subject to control of respondent and integrated into his business. Applicant did not calculate, deduct or pay PAYE payments. No evidence to indicate applicant was in business on her own account. Applicant employee.UNJUSTIFIED DISMISSAL: Applicant dismissed by text message. No formal disiplinary action taken by respdoneent. Dismissal fell short of procedural requirements of fairness and natural justice. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay $6,875 reimbursement of lost wages. $8,000 compensation appropriate. PENALTY: Breach of duty of good faith already covered by unjustified dismissal claim. Respdonent considered applicant was a contractor and did not require an EA. Non-provision of EA not deliberate. No penalty. |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages ($6,875) ; Compensation for humiliation etc ($8,000) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4A;ERA s6;ERA s65;ERA s103A;ERA s124;ERA s128(2);Holidays Act 2003 s28 |
| Number of Pages | 9 |
| PDF File Link: | 2017_NZERA_Auckland_389.pdf [pdf 194 KB] |