| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 68/06 |
| Hearing date | 18 Apr 2006 |
| Determination date | 26 April 2006 |
| Member | D Asher |
| Representation | M Nutsford ; no appearance |
| Location | New Plymouth |
| Parties | Fraser v Weston t/a Sportscar World |
| Summary | PRACTICE AND PROCEDURE - Record of oral determination - Respondent cited personally as employer - In statement of reply respondent alleged company was employer - Respondent's counsel informed Authority that respondent, as company's sole director, had been convicted of charges under s128A Insolvency Act 1967 - Respondent believed he would be in breach of s382(1)(a) Companies Act 1993 were he to participate in Authority's investigation - Authority proceeded with investigation because arguable that respondent was applicant's employer and Companies Act 1993 did not prevent respondent participating in personal capacity - JURISDICTION - No appearance by respondent - Whether employee or independent contractor - No evidence relationship was anything other than that of employee and employer - Employee - UNJUSTIFIED DISMISSAL - Identity of employer - Authority satisfied respondent was applicant's employer - No written employment agreement to effect that company was applicant's employer - Applicant's uncontested evidence that respondent made it clear from outset applicant would be working for him - If respondent employed applicant on behalf of company he clearly failed to disclose that fact and doctrine of undisclosed principal applied - Applicant alleged summarily dismissed when he refused respondent's request to register car without particular form - Dismissal unlawful because applicant dismissed for refusing to undertake dishonest behaviour - Dismissal occurred in context of angry rage by respondent whose demands were in complete violation of his obligations as fair and reasonable employer - Length of service five months one week - PENALTY - Respondent denied applicant's request for wage and time records on ground that applicant not an employee - Authority did not accept genuineness of respondent's claim - Authority's discretion properly exercised by imposing penalty - ARREARS OF HOLIDAY PAY - Applicant fairly entitled to recover unpaid holiday pay with interest from day of dismissal until day of payment - COSTS - Applicant sought costs of $2,500 - Amount sought fair and reasonable contribution - Car salesman |
| Result | Application granted ; Reimbursement of lost wages ($15,300)(17 weeks) ; Compensation for humiliation etc ($8,000) ; Arrears of holiday pay ($1,755) ; Interest (7.46%) ; Penalty ($500)(payable to crown) ; Costs in favour of applicant ($2,500) |
| Statutes | Companies Act 1993 s382;Companies Act 1993 s382(1)(a);ERA s6;ERA s128A;ERA s130(4);ERA s159;ERA s160;ERA s173;Insolvency Act 1967 s128A;Motor Vehicles Sales Act 2003 s24(i) |
| Cases Cited | Bryson v Three Foot Six Limited [2003] 1 ERNZ 581;Cuttance (t/a Olympus Fitness Centres) v Purkis [1994] 2 ERNZ 321 |
| Number of Pages | 10 |
| PDF File Link: | wa 68_06.pdf [pdf 47 KB] |