| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 180/10 |
| Hearing date | 5 Aug 2010 |
| Determination date | 15 September 2010 |
| Member | P Cheyne |
| Representation | S Thomas ; F Freeman |
| Location | Nelson |
| Parties | Wright v Clark & Anor |
| Other Parties | Clark Education and Training Ltd |
| Summary | JURISDICTION - Whether employee or independent contractor - Applicant and first respondent became friends - First respondent offered applicant work organising workshops second respondent ran - No written employment agreement - Payment for work to be arranged in way so as not to effect applicant’s entitlement to domestic purposes benefit - Applicant claimed was employee - First respondent claimed applicant independent contractor - Authority found overall arrangements between parties indicative of employment relationship rather than independent contractor status - Found applicant not operating own business - Found applicant did not produce tax returns, not registered for GST, and did not invoice respondents - Applicant provided with tools necessary to perform work - PAYE deducted from money applicant received - Applicant performed work under first respondent’s direction, although had significant latitude about when work performed as worked from home and not paid on hourly rate - Authority not satisfied first respondent’s evidence showed established industry practice of using contractor’s - Found first respondent never told applicant considered him to be contractor - Found applicant employee - Authority had jurisdiction to determine personal grievance - UNJUSTIFIED DISMISSAL - Poor performance - First respondent became dissatisfied with applicant’s performance - Applicant summarily dismissed - Found applicant given no warning performance unsatisfactory, given no opportunity to improve and summarily dismissed where had been no serious misconduct to warrant summary dismissal - Dismissal unjustified - Remedies - No contributory conduct - Found while applicant probably did not work to satisfactory standard, received no warning of that, either formally or informally, so as to give him opportunity to improve - Found applicant not at all responsible for first respondent’s complete failure to treat him in fair and reasonable manner - Found applicant’s evidence of hurt and humiliation exaggerated and applicant’s evidence generally unreliable - However, found applicant’s financial position deteriorated which would have caused some worry and concern - $3,000 compensation appropriate - Applicant sought two weeks pay in lieu of notice - Authority found applicant entitled to pay in lieu of notice - Found as no agreed notice period one weeks pay in lieu of notice appropriate - ARREARS OF WAGES AND HOLIDAY PAY - Applicant claimed owed arrears of wages and holiday pay - Respondent’s evidence of payments made preferred - Authority found applicant owed arrears of wages and holiday pay - Respondent to pay amount outstanding - PENALTY - Applicant sought penalty for failure to supply written employment agreement - Authority found parties happy to enter into informal arrangement for mutual benefit and in way did not impact on applicant’s benefit entitlement - Found penalty not warranted - Application declined - Applicant sought penalty for failure to pay holiday pay - Found Labour Inspector only person entitled to bring penalty claim - Application declined - PRACTICE AND PROCEDURE - Identity of respondent - First respondent principal of second respondent - Found however, first respondent never told applicant was acting as agent for second respondent and second respondent would be applicant’s employer - Found in those circumstances applicant entitled to choose whether to sue agent or undisclosed principal - Found as applicant initiated proceedings against first respondent personally and second respondent had chosen to sue principal therefore applicant not entitled to sue first respondent personally |
| Result | Applications granted (Jurisdiction)(Unjustified dismissal)(Arrears of wages and holiday pay) ; Arrears of wages and holiday pay ($524.47) ; Pay in lieu of notice ($80) ; Compensation for humiliation etc ($3,000) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s6;ERA s63A;Holidays Act 2003 s27(2);Holidays Act 2003 s75;Holidays Act 2003 s76(1) |
| Number of Pages | 10 |
| PDF File Link: | ca 180_10.pdf [pdf 31 KB] |