| Summary |
PRACTICE AND PROCEDURE - Applicant filed statement of problem claiming unjustifiably dismissed – Applicant sought arrears of wages, reimbursement of lost wages, compensation and recovery of $20,000 paid to second applicant for purchase of shares in first respondent – Second respondent advised not applicant’s employer and applicant employed by first respondent – Parties unable to settle at mediation – Investigation meeting held – Applicant asked Authority to make decision on urgent basis as concerned about respondents’ liquidity – Second respondent assured Authority no immediate likelihood of liquidation – Before Authority issued determination first respondent placed in liquidation – Liquidator did not give consent to continue legal proceedings under s248(1)(c) Companies Act 1993 - Issue then became whether second applicant should be held personally liable for any awards which would have been made against first respondent - Respondents claimed if applicant employee, second respondent not employer - Claimed doctrine of undisclosed principal did not apply – Claimed applicant’s claims not brought in accordance with s234 Employment Relations Act 2000 (“ERA”) - Claimed part payments for shares received by second respondent as agent for another company and not in personal capacity - Claimed no grounds to lift corporate veil because first respondent not a ‘front’ or sham – Claimed second respondent did not give any verbal undertaking accepting personal liability for first respondent’s debts - Applicant claimed second respondent approached applicant and personally offered him job - Claimed applicant had no knowledge of matrix of companies owned and controlled by second respondent and believed that at least one of his employers was second applicant – Claimed doctrine of undisclosed principal applied because second respondent failed to provide applicant with employment agreement and, then when one provided, employer named not one applicant knew anything about - Claimed applicant could assign claims to Labour Inspector so as to comply with s234 ERA or alternatively open to Authority to find second respondent was employer or joint employer and therefore s234 ERA irrelevant - Applicant claimed purchase of shares part of employment relationship therefore Authority had jurisdiction under s161(1)(r) ERA - Claimed no need to lift corporate veil as second respondent had always been party to proceedings and so could be held to be joint employer and equally liable for same debts as first respondent - Claimed on at least two occasions second respondent gave verbal undertakings that first respondent not in danger of being placed into receivership or liquidation - Authority found applicant employee – Found applicant employed by first respondent - Found, on evidence, applicant fully aware of nature of second respondent’s business and fully understood nature of relationship entering into - Found Authority had formally warned second respondent that should undertakings to Authority about possibility of liquidation prove to be based on misinformation was potential would be held personally liable – However, found evidence produced to Authority appeared to support second respondent’s claim no immediate danger of liquidation – Found no direct evidence that second respondent did not honestly believe no danger of receivership or liquidation - Authority did not accept applicant’s submission share transaction arose from or related to employment relationship - Found transaction separate from and not dependant on employment relationship - Therefore, Authority had no jurisdiction to investigate or make orders in relation to moneys paid by applicant for purchase of shares in first respondent - Found second respondent could not be held personally liable for payment of awards sought by applicant |