| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 99/09 |
| Hearing date | 16 Jun 2009 |
| Determination date | 24 July 2009 |
| Member | G J Wood |
| Representation | G Birkinshaw ; no appearance |
| Location | Wellington |
| Parties | Brikinshaw v Tepaki and Ors |
| Other Parties | Tepaki Group Cook Islands, Tepaki One Holdings, Tepaki Four Holdings, Tepaki Five Holdings, Tepaki Six Holdings, Tepaki Seven Holdings, Thorndon Terraces Ltd, Childcare Holdings Ltd |
| Summary | ARREARS OF WAGES – JURISDICTION – Applicant granted leave to pursue claim while overseas on ground one respondent (“T”) as principal of other respondents now domiciled permanently in Cook Islands – Applicant’s direct employer (“TG”) in liquidation – Applicant withdrew claim against TG, however, claims remained against respondents – Found T and other respondents failed to provide proper statement in reply and provided only minimum information – Authority found no good cause shown for respondent’s failure to attend investigation meeting – Found behaviour not facilitating Authority investigation – Applicant 10 percent shareholder of TG – Authority found applicant not paid from mid October 2007 to May 2008 – Authority found T’s personality such that somehow cajoled applicant into working without receiving wages – Found lure of profits through shareholding factor persuading work against better judgement – Authority found only two respondents registered in New Zealand – Found no details provided about other respondents and even if registered, not registered in New Zealand – Authority accepted T effectively in control over all respondents – Authority found other respondents not subject to Authority’s jurisdiction because not legal entities – Authority found TG umbrella of all respondents – Authority accepted applicant’s evidence T led all respondents’ activities through strength of personality – Authority accepted all respondents operated as one and funds regularly transferred from New Zealand to Cook Islands – Applicant conceded arrangement not a sham but number of inter-related businesses set up and used for convenience – Found arrangement such that if one company insolvent others protected – Applicant also conceded could not actually say arrangements a fa�ade to disguise nature of employment – Authority found TG owed applicant $46,250 arrears of wages – Authority found applicant trying to lift corporate veil to allow justice to parties by finding respondents as true employers – Authority found if TG not liquidated may have been possible to order respondents to meet obligations to applicant – Authority found not possible to order T to ensure payment owed by TG is made to applicant – Found evidence not sufficient to establish T or other respondents alter ego of TG – Found this case unlike common situation where parent company employer even though subsidiary apparent employer – Found, however morally repugnant cannot be said to be artificial in circumstances – No remedies available to applicant – Application dismissed |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA Second Schedule cl4A |
| Cases Cited | Mahon v Crockett (1999) 8 NZCLC 262 (CA);Red Eagle Corporation Ltd v Walker (unreported) Colgan J, AEC 86A/95;NZ Seafarers' Union Inc v Silver Fern Shipping Ltd (No 2) 3 ERNZ 786;Mclellan v Internet Productions Ltd (in liquidation) [2003] 1 ERNZ 282 |
| Number of Pages | 7 |
| PDF File Link: | wa 99_09.pdf [pdf 29 KB] |