| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 319/09 |
| Hearing date | 19 Fe 2009 - 20 Feb 2009 (2 days) |
| Determination date | 07 September 2009 |
| Member | R Arthur |
| Representation | K Tiumalu-Faleseuga ; F Toailoa-Amituanai, A Rowe, no appearance |
| Location | Auckland |
| Parties | Asekera and Anor v Pacificare Trust, a registered Charitable Trust and Ors |
| Other Parties | Askera, The New Zealand Guardian Trust Company Ltd, Mangere Community Hub, a registered Charitable Trust |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Applicants sought orders for payment of wages, holiday pay and redundancy pay owed by Guardian (G) – G exercised powers to become mortgagee in possession of business and assets of Pacificare (P) – Mangere Community Hub (MCH) provided services needed to continue operation of business – MCH employed some existing P employees – Applicants not offered employment by MCH – Applicants claimed entitled to be employed by G because G continued to operate business in which they worked – Applicants argued G acted and behaved as employer in taking back mobile telephone and computer and telling applicant to leave – P claimed applicants still employees and had intention to eventually reinstate – Authority found applicants’ employment with P terminated when G took possession of business – Found no employment relationship automatically created with G – Found applicant not entitled to compensation for redundancy – Found payment of notice period, annual leave and wages owed by P – Funds in bank account in possession of G – Found funds in bank account not held on trust for payments to staff – G entitled to use funds in bank account for business – No evidence P had funds available to pay amounts owing – No order for payment – Finance and administration manager and part-time book keeper |
| Result | Application dismissed ; Orders made ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s69B;ERA s69B(a);ERA s69B(b);ERA Part 6A;ERA s137(3);Property Law Act 1952;Property Law Act 1952 s104PPA(2)(b);Property Law Act 2007 |
| Cases Cited | Reid v The Explosives Company Limited (1887) 19 QBD 264 |
| Number of Pages | 9 |
| PDF File Link: | aa 319_09.pdf [pdf 32 KB] |