| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 64/06 |
| Hearing date | 18 Oct 2005 |
| Determination date | 07 March 2006 |
| Member | K J Anderson |
| Representation | S Menzies ; A Hope |
| Location | Auckland |
| Parties | Osborne v Te Runanga O Kirikiriroa Trust Incorporated |
| Summary | JURISDICTION - Whether employee or independent contractor - Applicant referred to position by WINZ - Contract provided that applicant was independent contractor and stated that parties acknowledged significance of distinction between independent contractor and employee - Respondent never explained to applicant what distinction was - Respondent's approach irresponsible - Sections 6(2) and (3) Employment Relations Act 2000 existed largely to prevent this type of sham contract - Applicant almost totally integrated into respondent - Hours of work and location decided by respondent - Respondent had to make PAYE tax deduction arrangements because applicant had no knowledge of what was required - Not in business on her own account - Employee - ARREARS OF HOLIDAY PAY - Entitled to holiday pay at rate of 6 percent of gross earnings - UNJUSTIFIED DISMISSAL - HR manager felt applicant implied working for respondent was inconvenient to her and she only took job because otherwise she would have had 26 week stand down from being paid unemployment benefit - Chief Executive thought applicant's reaction to being asked about missing camera showed she did not want to work for respondent - Respondent made enquiries with WINZ - HR Manager told applicant that WINZ had given assurance she would not be financially disadvantaged if excused from working for respondent - Applicant believed she had been dismissed and HR Manager knew about applicant's mistaken perception - Ideally respondent could have allowed cooling down" period and made better effort to ascertain applicant's intentions - However unlikely anything would have changed - No dismissal - No personal grievance - COSTS - Costs to lie where they fall - Length of service four months - Field worker" |
| Result | Application granted (jurisdiction) ; Holiday pay ($262.46) ; Application dismissed (personal grievance) ; No order for costs |
| Statutes | ERA s6;ERA s6(2);ERA s6(3) |
| Cases Cited | Bryson v Three Foot Six Limited [2003] 1 ERNZ 581;Koia v Carlyon Holdings Ltd [2001] ERNZ 585 |
| Number of Pages | 7 |
| PDF File Link: | aa 64_06.pdf [pdf 42 KB] |