| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 166/10 |
| Hearing date | 6 Oct 2010 |
| Determination date | 18 October 2010 |
| Member | P R Stapp |
| Representation | G Tayler ; D Feist |
| Location | Napier |
| Parties | Cuthill-Coutts v Employment Dispute Services Ltd |
| Summary | JURISDICTION - Whether employee or independent contractor - Authority found conflicting evidence from parties as to intentions - Respondent claimed industry practice for independent contractor arrangement - Found industry practice not determinative of matter as respondent provided no independent evidence of industry practice - Found respondent had sufficient control of applicant’s role for applicant to be employee - Found applicant required to follow certain procedures and provided with all files and paperwork required - Found those facts outweighed fact applicant operating unsupervised and at distance from respondent’s offices - Found applicant only used own transport, computer and supplies because respondent had no office where applicant located - Found applicant received some training - Found applicant not in business on own account - Found applicant not registered for GST - Found applicant was student - Found applicant integrated into respondent - Found applicant reliant on receiving files from respondent and respondent reliant on applicant conducting mediations with its clients to generate income - Found nature of role meant no expectation applicant could generate own cases for respondent - Applicant employee - UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant found it increasingly difficult to communicate and obtain responses from respondent - Applicant resigned - Authority found communication difficulties made resignation foreseeable as role carried out at distance and applicant accepted job to gain experience - Found applicant constructively dismissed - Remedies - No contributory conduct - Found applicant entitled to reimbursement for three mediations - Found applicant felt bewildered, abandoned and unsupported by respondent - $1,000 compensation appropriate - ARREARS OF WAGES AND HOLIDAY PAY - Found applicant not paid for work performed in final week of employment - Respondent to pay applicant $120 arrears of wages - Applicant not paid holiday pay entitled to - Respondent to pay applicant $26 holiday pay - PENALTY - Applicant sought penalty for failure to provide written employment agreement - Authority found penalty not appropriate as was dispute over nature of employment - Respondent did not provide employment agreement as intended contractor relationship - Application declined - BREACH OF CONTRACT - Respondent claimed applicant negligent in performing duties - Claimed client did not pay fees and claimed losses arising from applicant not settling at sufficiently high sum in mediation - Found respondent could have pursued fee through Disputes Tribunal or summary judgment - Found no independent qualitative or quantitative evidence of what adequate level of settlement was so as to show what constituted loss - Found respondent provided no independent evidence from people involved or objective outcomes to support claim - Found respondent had no performance guidelines - Counterclaim dismissed - Employment Relations Consultant |
| Result | Applications granted (Jurisdiction)(Unjustified dismissal) ; Application dismissed (Penalty) ; Arrears of wages ($120) ; Holiday pay ($26.40) ; Reimbursement of lost wages ($270) ; Compensation for humiliation etc ($1,000) ; Counterclaim dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Number of Pages | 11 |
| PDF File Link: | wa 166_10.pdf [pdf 47 KB] |