| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 95/10 |
| Hearing date | 14 Apr 2010 |
| Determination date | 20 April 2010 |
| Member | P Cheyne |
| Representation | N Eketone-TeKanawa ; J Beck |
| Location | Dunedin |
| Parties | Cousins and Anor v Booth |
| Other Parties | Harris |
| Summary | PRACTICE AND PROCEDURE – Correct identity of employer – Applicants claimed employed by respondent at all material times – Respondent argued applicants employed by company (“X”) – Respondent shareholder and director of X – X in sale and purchase negotiations with vendors of hotel - X intended to lease out hotel complex to leases after settlement – Vendors allowed X access to stand alone accommodation facilities prior to settlement – Sale and purchase contract had “due diligence” clause where X did not need to confirm contract if unsatisfied with economic viability of plans – Prior to settlement, respondent informally spoke to applicants regarding plans for stand alone accommodation business - Conflict of evidence whether discussion about applicants managing business or possible lease arrangement - Following discussion, applicants commenced setting up stand alone business – Applicants used own money for work expenses - Towards end of due diligence period, applicants advised respondent not interested in taking lease – Applicants claimed arrears of wages and holiday pay for employment – Respondent gave applicants money to contribute towards work expenses – Payment did not indicate came from X’s funds – Applicants ceased management of business – Authority found during informal discussions with applicants, respondent described business plans as respondent’s personal plans – Found following discussion, applicants commenced management role – Accepted respondent may have advised applicants due diligence condition before purchase could be settled – Found applicants managed stand alone business as experienced hoteliers rather than part of arrangement for applicants to take on lease – Found employment relationship formed between applicants and respondent – Respondent applicants’ employer - ARREARS OF WAGES – ARREARS OF HOLIDAY PAY – Authority found arrears of wages and holiday pay due and owing – Respondent to pay first applicant $9,480 arrears of wages plus holiday pay - Respondent to pay second applicant $8,820 arrears of wages plus holiday pay – Interest payable - Applicants required to provide copies of source document from which record of hours complied - Leave reserved in case of calculation disputes – PENALTY – Authority declined applicants to amend at late notice statement of problem for penalty – Penalty declined |
| Result | Applications granted (Arrears of wages)(Arrears of holiday pay) ; Application dismissed (Penalty) ; Arrears of wages ($9,480)(First applicant) ($8,820)(Second applicant) ; Holiday pay (Quantum to be determined)(First and second applicant) ; Interest (4.5%) ; Costs reserved |
| Main Category | Arrears |
| Cases Cited | Colosimo v Parker (2007) 8 NZELC 98,622 |
| Number of Pages | 8 |
| PDF File Link: | ca 95_10.pdf [pdf 29 KB] |