| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 159/09 |
| Hearing date | 2 Jun 2009 |
| Determination date | 22 September 2009 |
| Member | H Doyle |
| Representation | T Bamford, R Frost ;P Chemis, S Ahn, G Service, E Moore |
| Location | Christchurch |
| Parties | McDonald v Ontrack Infrastructure Ltd and Anor |
| Other Parties | Allied Work Force Ltd |
| Summary | PRACTICE AND PROCEDURE - Identity of employer - Applicant had written employment agreement with second respondent - Second respondent labour hire company - Second respondent placed applicant in position with first respondent - Applicant claimed unjustifiably dismissed by first respondent when assignment ended - Respondents claimed no employment relationship between applicant and first respondent - Whether applicant employee of first or second respondent - Respondents claimed real nature test in s6 Employment Relations Act 2000 (“ERA”) not relevant in tripartite arrangement given express contractual arrangement between parties - Applicant claimed s6 ERA considered more than just issue of whether contract of services or contract for services - Claimed should be able to inquire into whether contract of service between applicant and first respondent - Authority found from express contractual arrangement intention of parties that applicant employed as casual employee by second respondent to work on assignments for third parties - Found no intention applicant have employment relationship or be employee of first respondent - Authority found express contractual intention not displaced by later conduct of parties - Therefore Authority could not find applicant employed under contract of services with first respondent under s6 ERA - Authority considered other tests - Authority not satisfied control test favoured employment relationship between applicant and first respondent - Found clear from contractual arrangements between respondents that applicant would be under control of first respondent during assignment - Authority found applicant effectively integrated into first respondent for duration of assignment - However, found not inconsistent with contractual intentions of parties so as to find applicant entered into contract of service with first respondent - Authority not satisfied under s6 ERA that applying fundamental test allowed Authority to conclude applicant under contract of service with first respondent - Authority not satisfied real nature of relationship other than that in contractual arrangements between applicant and second respondent - Whether employment agreement with first respondent should be implied - Authority found Australian and English decisions discussed whether contract of service should be implied between person placed with employment agency and client - Authority found whether contract to be implied was question of fact - Authority found in applying approach adopted in English decisions relationship between applicant and first respondent adequately explained by express contractual arrangements between applicant and second respondent and between first and second respondents - Authority not satisfied respondents’ subsequent words or conduct changed express contractual arrangements - Authority found not necessary to imply contract of service to relationship between applicant and first respondent - Found applicant employed by second respondent - UNJUSTIFIED DISMISSAL - Triangular employment - Authority not satisfied second respondent dismissed applicant from first respondent - Found second respondent did not dismiss applicant; it ended its commercial relationship with second respondent for applicant’s assignment - Found applicant’s assignment ended as contemplated by contractual arrangement between respondents - Found applicant had no entitlement to ongoing work with first respondent and second respondent had no control over when assignment would end - No unjustified dismissal - ARREARS OF HOLIDAY PAY - Found applicant received holiday pay as part of weekly pay - Requirements of s28 Holidays Act 2003 not met - Second respondent to pay applicant eight percent of gross earnings from time of assignment with first respondent - Trainee Track Worker |
| Result | Applications dismissed (practice and procedure, unjustified dismissal) ; Arrears of holiday pay (Quantum to be determined) ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s6;Employment Relations Amendment Bill (No 3) 2008;Holidays Act 2003 s23(2);Holidays Act 2003 s28 |
| Cases Cited | Brook Street Bureau (UK) Ltd v Dacas [2004] EWCA CIV 217;Damevski v Giudice [2003] 202 ALR 494;East Living Ltd v Sridhar [2008] UKEAT 0476/07/0411;James v London Borough of Greenwich [2008] EWCA CIV 35;Jinkinson v Oceania Gold (NZ) Ltd [2009] ERNZ 225;Wilton & Cumberland v Coal & Allied Operations Pty Ltd [2007] FCA 725;Yukich v Allied Work Force Far North Ltd unreported, A Dumbleton, 11 Jan 2008, AA 3/08 |
| Number of Pages | 20 |
| PDF File Link: | ca 159_09.pdf [pdf 67 KB] |