| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 61 |
| Hearing date | 12 Apr 2011 |
| Determination date | 26 April 2011 |
| Member | D Asher |
| Representation | F Yu (in person) ; X Li (in person) |
| Location | Wellington |
| Parties | Yu v Li and Anor |
| Other Parties | Symbol Spreading Ltd |
| Summary | JURISDICTION – Whether employee or independent contractor – Applicant claimed was employee – Respondent claimed applicant contractor – Written agreement between parties stated applicant was contractor with agreement expressed to be for two years – Agreement contained non competition clause – Authority found no evidence applicant worked for competitor before or during time with respondent – Found no evidence applicant in business on own account – Found while applicant sold cars during time with respondent was limited to own time on weekends - Authority found applicant integral part of respondent – Found applicant’s primary responsibility of selling advertising space central to respondent’s business and economic survival - Found applicant’s work activities highly controlled by respondent – Found applicant worked regular business hours and failure to work prescribed hours resulted in deduction from pay – No evidence of industry practice provided – Found applicant not GST registered – Found other than agreement and applicant’s use of own car and mobile phone all evidence pointed to real nature of relationship being that of employee and employer – Found applicant employee - UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged when respondent failed to pay him for two months work causing applicant to resign – Found as employee applicant entitled to prompt payment of wages and commission earnings – Found respondent’s failure to meet that obligation or undertake steps to resolve employment relationship problem resulting from it resulted in unjustified disadvantage - Remedies – No contributory conduct – Found applicant unable to pay living expenses – Found applicant suffered hurt and humiliation - $2,000 compensation appropriate - ARREARS OF WAGES AND HOLIDAY PAY – Applicant claimed entitled to commission payments – Applicant provided no evidence in support of claim – Authority found on evidence available impossible to quantify what, if any, unpaid commission earnings owed to applicant – Applicant sought minimum wage and holiday entitlements for length of employment - Authority ordered parties to attempt to reach agreement on what, if any, wages owed to applicant based on formula provided – Parties directed to mediation if unable to agree with leave reserved to return to Authority for calculation - COUNTERCLAIM – Respondent sought damages for loss resulting from applicant’s failure to give required three month notice period – Claimed invested significant resources and training in applicant and applicant obliged to compensate respondent for one and a half month’s earnings to cover that – Authority found respondent provided no evidence in support of claims - Counterclaim dismissed - Advertising salesman |
| Result | Application granted (Jurisdiction)(Unjustified disadvantage)(Arrears of wages and holiday pay) ; Application dismissed (Commission payments) ; Compensation for humiliation etc ($2,000) ; Arrears of wages and holiday pay (Quantum to be determined by parties) ; Counterclaim dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6;Holidays Act 2003 s63;Holidays Act 2003 s65;Minimum Wage Act 1983 |
| Cases Cited | Bryson v Three Foot Six Ltd and Ors [2005] 1 ERNZ 372 ; [2005] 3 NZLR 721;Tsoupakis v Fendalton Construction Ltd unreported, Colgan CJ, 18 Jun 2009, WC 16/09 |
| Number of Pages | 14 |
| PDF File Link: | 2011_NZERA_Wellington_61.pdf [pdf 39 KB] |