| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 145/06 |
| Hearing date | 26 Oct 2006 |
| Determination date | 27 October 2006 |
| Member | D Asher |
| Representation | N Szeto ; no appearance |
| Location | Wellington |
| Parties | Semmens (Labour Inspector) v SDP Call Centres Ltd |
| Summary | JURISDICTION - Applicant Labour Inspector sought determination R an employee - No appearance for respondent - Director claimed unable to prepare and attend investigation meeting due to ill health - Respondent had witness statements and elected not to respond to allegations - Age of R's claims, absence of medical records about director's health, and advice regarding respondent's poor trading position defeated its implied request matters be held off" - Not unfair to proceed with investigation meeting - Whether employee or independent contractor - No written employment agreement - Two other ex-employees of respondent pursued similar claims - Claims settled by way of a Authority consent determination - Applicant relied on express terms in consent determination to support claim R an employee - R worked from respondent's premises with set regular work patterns - Remuneration commission based - Not required to invoice for services - Respondent's level of control significant - Evidence showed R, along with other operators, integral part of respondent's business - No evidence in business on own account - Overall picture clearly one of R being full-time employee - No evidence of industry practice telephone operators/telemarketers typically employed on contract for services - No reason to doubt R's evidence, to extent she turned her mind to it, she intended to enter employment relationship - Employee - ARREARS OF WAGES AND HOLIDAY PAY - Applicant entitled to recover minimum wages, annual holiday pay, public holiday pay, and interest - Minimal wage and time records provided despite requests made to respondent - Applicant's estimation of arrears accepted - Holiday pay and wages due and owing - Interest 6 percent - COSTS - Respondent to reimburse filing fee" |
| Result | Application granted ; Arrears of wages ($30,422.52) ; Arrears of holiday pay ($3,264)(Public holiday pay), ($5,461.20)(Annual holiday pay) ; Interest (6%) ; Disbursements in favour of applicant ($70)(Filing fee) |
| Statutes | ERA s6;ERA s160;ERA s173;Holidays Act 2003 s84;Holidays Act 2003 s228 |
| Cases Cited | Bryson v Three Foot Six [2003] 1 ERNZ 581 ; [2005] 1 ERNZ 372 (SC);McGowan v SDP Call Centres Ltd unreported, D Asher, 15 August 2005, WA 131/05 |
| Number of Pages | 9 |
| PDF File Link: | wa 145_06.pdf [pdf 35 KB] |