| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 192 |
| Hearing date | 18 Apr 2011 - 9 May 2011 (2 days) |
| Determination date | 10 May 2011 |
| Member | R Arthur |
| Representation | G Turner (in person) ; P Hill |
| Location | Auckland |
| Parties | Turner v The Stonne Trust and Anor |
| Other Parties | Columbard Ltd |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Applicant worked in second respondent enterprise (“C”) – Principal figure in enterprise (“P”) declared bankrupt, disqualified from holding office of company director - C denied any employment relationship with applicant and claimed applicant at all times employed by first respondent (“S”) although applicant had worked at other entities in group – C told applicant was employed by S when applicant started fulltime role – Applicant claimed C did not exist at time as applicant helped with required documentation to set up companies - No written employment agreement – Applicant given draft agreement, but told not to sign until business had income sufficient to pay weekly wages – P told applicant not to address all invoices to S and to address some to other entities in group – Authority found addressing invoices to other entities did not create employment relationship – Found applicant did not work for any other entity during period and work controlled by P or other managers on S’s behalf – Found although applicant made own tax arrangements, applicant instructed to do so and applicant understood would be paid for annual and sick leave - Found applicant employed by S and no other entity – C did not employ applicant and was not liable to pay amounts due - ARREARS OF WAGES – P sent applicant letter confirming outstanding amount, referred to interest on unpaid salary and said P personally guaranteed “full principal amount” – Authority found S agreed to pay interest on unpaid salary and P personally guaranteed unpaid salary – Found P’s bankruptcy did not extinguish S’s liability for applicant’s unpaid salary and accumulated interest – P claimed change of trustees meant debts incurred by S before new corporate trustee appointed no longer applied – Authority noted P failed to provide evidence or authority for proposition – Authority found neither corporate trustee incurred direct liability to pay applicant’s outstanding wages – Found applicant employed by S and S liable for unpaid salary whether or not new trustee appointed – P claimed S had no assets or resources to pay unpaid wages – Applicant claimed available assets and resources had been moved to other entities in attempt to defeat applicant’s claim – Authority found S liable for applicant’s unpaid salary and interest amount earlier agreed – S to pay applicant $107,575 unpaid salary and $22,421 interest – S to pay applicant interest on unpaid salary from when applicant lodged claim until amount paid in full - Research and Development Manager |
| Result | Application granted ; Arrears of wages ($107,575) ; Interest ($22,421) ; Interest for period from when application filed (8.4%) ; No order for costs ; Disbursements in favour of applicant ($70)(filing fee) |
| Main Category | Arrears |
| Statutes | ERA s141;ERA s174;ERA Second Schedule cl11(1);ERA Second Schedule cl11(3) |
| Number of Pages | 7 |
| PDF File Link: | 2011_NZERA_Auckland_192.pdf [pdf 21 KB] |