| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 141/08 |
| Hearing date | 5 Jul 2007 |
| Determination date | 16 April 2008 |
| Member | L Robinson |
| Representation | D Jacobson ; G Spry |
| Location | Auckland |
| Parties | Smith v Pacific Palms International Resort & Golf Club Ltd |
| Summary | JURISDICTION – Whether employee or independent contractor – Credibility finding in favour of applicant – Respondent’s director (“A”) established company (“B&B”) with applicant and wife as directors and shareholders – At A’s request applicant prepared management contract between B&B and respondent – Contract never executed by A – Respondent’s solicitors purported to confirm contract but with revised remuneration – Applicant accepted revised remuneration effectively imposed by A – Parties’ intention relevant but not decisive – Authority unable to find both parties had explicit common intention that applicant employee – Significant control imposed indicative of employment – Applicant’s role as General Manager integral part of operation – Relationship in practice indicated applicant an employee – Applicant employee – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant rendered 12 invoices to respondent during period of employment of which only 4 were paid – Despite repeated requests and A’s repeated promises, applicant not paid – Applicant tolerated delay because of parties close relationship and trust placed in A – Resigned when tolerance and patience ran out – Failure to pay breach of duty owed to applicant – Breach of duty so serious reasonably foreseeable that substantial risk applicant would resign – Dismissal unjustified – Remedies – No contributory conduct – Applicant extremely hurt and humiliated by A’s behaviour – Applicant distressed to learn of rumours, hurtful criticism and untrue allegations made by A – Situation exacerbated by personal friendship with A and applicant’s devotion to job – Respondent’s failure to pay placed applicant in situation where had to sell house as unable to pay mortgage – Property eventually sold at a loss – Entitled to compensation of $15,000 – General manager |
| Result | Application granted ; Reimbursement of lost wages ($72,000) ; Arrears of wages ($117,750) ; Interest (10%) ; Compensation for humiliation etc ($15,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Sale of Liquor Act 1989 |
| Number of Pages | 12 |
| PDF File Link: | aa 141_08.pdf [pdf 41 KB] |