| Summary |
JURISDICTION – Whether employee or independent contractor – Applicant claimed employee at all material times – Respondent argued independent contractor as applicant’s earnings not subject to PAYE – Authority found no evidence to support applicant contractor – Found respondent’s employer’s monthly schedule filed PAYE for applicant – Applicant employee - UNJUSTIFIED DISMISSAL – Misconduct – Applicant claimed dishonesty allegations false therefore dismissal unjustified – Respondent argued applicant dishonest, and verbally and physically abused respondent amounting to misconduct warranting dismissal – Respondent alleged applicant purchased unnecessary stationary items and inappropriately used paid annual leave for recent holiday – Applicant upset, swiped stationary off respondent’s desk and used abusive language – Respondent subsequently sent applicant letter providing applicant’s hours reduced due to financial difficulties – Following day, applicant advised respondent looking for new employment – Respondent issued applicant with final written warning for misconduct – Warning provided applicant would be summarily dismissed if abusive behaviour re-occurred – Next day, respondent sent applicant email alleging applicant dishonest as used office equipment and time to run own business – Next day, respondent sent applicant email stating respondent closing down office – Next day, respondent requested applicant reimburse respondent for overpayment of wages and buying personal stationary with respondent’s account – Applicant provided respondent with cheque to cover items – Applicant requested respondent reimburse applicant for using applicant’s business to advertise their business – Respondent summarily dismissed applicant for misconduct – Authority found respondent predetermined applicant dishonest and gave no opportunity for explanation – Found had respondent given opportunity for explanation, would have found applicant provided cheques to reimburse respondent for personal items – Found insufficient evidence applicant’s son purchased items using respondent’s account – Found final written warning dealt with applicant’s abusive behaviour therefore could not be used to justify dismissal three days later – Found if was subsequent abusive conduct, respondent failed to appropriately address it – Found respondent failed to undertake full and fair investigation into dishonesty allegation – Dismissal unjustified – REMEDIES – Found 10 percent contributory conduct due to applicant’s abusive conduct – Reimbursement of $3,600 lost wages– Applicant claimed $15,000 compensation appropriate for dismissal and respondent’s post-dismissal conduct – Claimed respondent made false complaints to Police and IRD which caused applicant distress - Found allegations to IRD without foundation therefore calculated into compensation – Found however, police complaint due to respondent genuinely wanting matter investigated, therefore not considered – Found $10,000 compensation appropriate - ARREARS OF WAGES – ARREARS OF HOLIDAY PAY – Authority found arrears of wages and holiday pay due and owing – Respondent ordered to pay applicant total of $684 – COUNTERCLAIM – Recovery of monies - Respondent sought to recover $42,653 for unauthorised expenditure and use of respondent’s property and time for personal business – Respondent claimed applicant opened bank account without authorisation – Authority found no loss resulted and respondent could have closed account – Respondent claimed authorised withdrawal of money – Applicant argued respondent signed withdrawal cheques – Found authorisation given – Respondent claimed applicant used respondent’s facilities to operate own business without authorisation therefore entitled to recover holiday pay, after hours wages, and costs for missing stationary items – Applicant argued respondent authorised applicant to be insurance broker and trade from office – Found brokerage activities authorised – Found no evidence applicant used facilities to run other personal business – Found holiday pay owed to applicant and unjust to order applicant pay money back – Found claim for unpaid wages and missing stationary items not sustained – Respondent claimed applicant liable for costs involved in audit of applicant’s wage book – Found applicant not liable for costs – Respondent claimed $15,000 compensation for stress arising from applicant’s actions – Found claim invalid – Counterclaim declined – Office Administrator |