| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 368/10 |
| Determination date | 19 August 2010 |
| Member | V Campbell |
| Representation | R Alchin ; W Quin (in person) |
| Location | Auckland |
| Parties | Trucking Relief (Waikato) Ltd v Quin |
| Summary | PRACTICE AND PROCEDURE - Application for removal to Employment Court (“EC”) - Respondent claimed commenced employment with applicant as casual employee but by time employment ended was permanent employee - Applicant temporary labour agency - Respondent placed with one of applicant’s clients - Respondent advised no further work available at client - Respondent claimed unjustifiably dismissed - Applicant sought removal of matter to EC - Respondent opposed removal - Applicant claimed was important question of law likely to arise other than incidentally during proceedings - Claimed question of law was whether person employed by labour hire agency, on casual employment agreement and who was contracted out to perform work for third party could be considered permanent employee when was no permanent relationship for provision of services either between employer and employee or between employer and third party client of employer - Claimed question of law was about whether status of employment relationship was relationship between employer and employee, or relationship between employee and third party - Applicant claimed was lack of precedent in relation to triangular relationships - Authority found were number of Authority determinations where Authority determined real nature of employment relationship and correct identity of employer in situations of triangular relationships - Authority also aware of decision which had been heard by Full Court of EC but pending written decision where nature and status of triangular relationships being considered - Found proceedings were factual enquiry to determine whether respondent dismissed by applicant and if was dismissal whether it was justified - Found did not appear to be dispute about identity of employer - Authority not of opinion that in all circumstances EC should determine matter - Authority satisfied matter should not be removed - Application for removal declined - Driver |
| Result | Application dismissed ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s178(2)(a);ERA s178(2)(d) |
| Cases Cited | McDonald v Ontrack Infrastructure Ltd and Anor unreported, H Doyle, 22 Sep 2009, CA 159/09 |
| Number of Pages | 3 |
| PDF File Link: | aa 368_10.pdf [pdf 13 KB] |