| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 527/10 |
| Hearing date | 15 Nov 2010 |
| Determination date | 23 December 2010 |
| Member | E Robinson |
| Representation | Wu (in person); Mr Jin |
| Location | Auckland |
| Parties | Wu v JDC New Zealand Co Ltd |
| Summary | UNJUSTIFIED DISMISSAL – JURISDICTION – Whether employee or independent contractor – Applicant claimed unjustifiably dismissed by respondent – Respondent argued applicant not unjustifiably dismissed as was contractor – Alternatively, if found applicant an employee, applicant’s employment terminated prior to completion of 6 month trial period – Alternatively, applicant voluntarily terminated employment through resignation – Applicant had incident with respondent where claimed informed by respondent was dismissed and not required to attend work next day – Applicant claimed not given reason for dismissal and told to return following week to collect final payment – Claimed respondent refused to pay final payment – Claimed respondent required applicant to sign document stating applicant be placed on 3 month and 6 month trial periods – Claimed first time made aware employment subject to trial period – Applicant refused to sign document – Documents showed respondent paid PAYE on applicant’s behalf – Found applicant subject to control of respondent in daily work – Found nature of applicant’s duties meant integral part of business – Found fundamental test favoured finding that applicant employee – Found applicant not in business on own account – Found applicant an employee – Found applicant not provided with written employment agreement – Found applicant clearly stated did not agree to trial or probationary period – Found respondent had referred to trial periods in excess of 90 days – Found applicant not subject to probationary period or trial period – Found applicant had come away from conversation with respondent that had been dismissed – Found applicant’s evidence supported by co-workers – Found no substantive justification for dismissal – Found no fair process followed – Dismissal unjustified – Remedies – Found no contributory conduct – Authority not convinced applicant made vigorous effort to mitigate loss by finding alternative employment – Found applicant not entitled to reimbursement of lost wages – Found applicant entitled to arrears of holiday pay – Found $3,000 compensation appropriate – Chef |
| Result | Application granted ; Compensation for humiliation etc ($3,000) ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s67A;ERA s67A(2);ERA s67B;ERA s124;Holidays Act 2003 s27;Holidays Act 2003 s28;Holidays Act 2003 s50(1)(a);Holidays Act 2003 s56(1) |
| Cases Cited | Allen v Transpacific Industries Group Ltd (t/a “Mediasmart Ltd”) (2009) 6 NZELR 530;Bryson v Three Foot Six (No 2) [2005] ERNZ 372;Radius Residential Care Limited v McLeay unreported, [2010] ERNZ 371 |
| Number of Pages | 15 |
| PDF File Link: | aa 527_10.pdf [pdf 64 KB] |