| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 21/01 |
| Determination date | 22 March 2001 |
| Member | J Wilson |
| Representation | B Hayes ; R McKenzie |
| Location | Auckland |
| Parties | Hook v JB's Contractors Ltd |
| Summary | JURISDICTION - Whether employee or independent contractor - Signed document titled Terms and conditions for subcontractors and employees" - Deducted withholding tax - Responsible for own ACC payments - Provided some tools - Hours and tasks controlled by respondent - Worked under supervision - Tax status not a determining factor - Respondent intended to enter into contract for services - Degree of control suggested employment relationship - Provision of tools did not indicate in business on own account - Work performed an integral part of business - Real nature of parties relationship was employer/employee - UNJUSTIFIED DISMISSAL - Serious misconduct - Observed urinating against wall at work function - Dismissed following minimal investigation - Lack of process due to believed employment status - Evidence not probative of conduct - Disciplinary investigation failed to meet minimum standards - Procedural unfairness rendered dismissal unjustified - Builder" |
| Result | Application granted ; Arrears of holiday pay ($194.64) ; Reimbursement of lost wages ($1,890)(3 weeks) ; Reimbursement of holiday pay ($113.40)(Notice) ; Compensation for humiliation etc ($1,000) ; Costs reserved |
| Statutes | ERA s5;ERA s6;Holidays Act 1981 |
| Cases Cited | Cunningham v TNT Express Worldwide (NZ) Ltd [1993] 1 ERNZ 695;Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374 ; [1990] ICR 409;Muollo v Rotaru [1995] 2 ERNZ 414;NZ (with exceptions) Food Processing etc IUOW v Unilever NZ Ltd [1990] 1 NZILR 35 |
| Number of Pages | 12 |
| PDF File Link: | aa 21_01.pdf [pdf 56 KB] |