| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 51/08 |
| Hearing date | 17 Apr 2008 |
| Determination date | 28 April 2008 |
| Member | P R Stapp |
| Representation | B Mijic (Applicant in person) ; H Memelink (Respondent in person) |
| Location | Wellington |
| Parties | Mijic v Memelink |
| Summary | JURISDICTION – Whether employee or independent contractor – Applicant employed by UPL – Respondent purchased most of UPL’s assets and assignment of property lease to operate UPL – Under terms of sale and purchase UPL agreed to change name so respondent could use UPL name when bought assets – Found respondent never an employee or director of UPL – Condition of sale and purchase of UPL that respondent agreed to offer employment to existing employees and assume responsibility for settlement of wages – Applicant claimed short paid $15,500 by respondent – Applicant claimed calculation in absence of any records, based on net entitlement for full term of employment less amount already paid in net terms – Found applicant and respondent agreed acted in goodwill towards each other when flood damage caused losses and business shut – Applicant claimed agreed to be paid fortnightly by respondent instead of monthly under previous agreement with UPL – Respondent argued no money owing to applicant – Respondent argued advances made to applicant as a contractor – Authority found documents clearly identified applicant as employee – Found applicant not GST registered and not responsible for own tax – Found no documents produced by respondent to show applicant contractor – Found applicant had role in business and respondent had control of business – Authority rejected respondent’s argument that personal involvement meant unable to call witnesses or produce certain evidence – Identity of employer – Authority found in background two companies respondent seemed to use for UPL business – Found no clear evidence respondent actually offered employment to applicant under companies names – Found applicant entitled to reasonably assume employer was respondent personally – ARREARS OF WAGES - Found applicant relied upon own calculations – No wage and time records or any other documents about payments made to applicant – Found terms of any payments vague – Applicant’s evidence preferred – Respondent ordered to pay applicant $15,500 |
| Result | Application granted ; Arrears of wages ($15,500) ; No order for costs |
| Main Category | Arrears |
| Number of Pages | 9 |
| PDF File Link: | wa 51_08.pdf [pdf 38 KB] |