| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 195 |
| Hearing date | 7 Dec 2010 - 9 Dec 2010 (3 days) |
| Determination date | 11 May 2011 |
| Member | J Wilson |
| Representation | E Davies, D Neutze ; M O'Brien |
| Location | Auckland |
| Parties | Newick v Working In Ltd and Ors |
| Other Parties | Working In Visas Ltd, Mathieson, Roberts |
| Summary | JURISDICTION – Whether applicant employee – PRACTICE AND PROCEDURE – Identity of employer - Applicant claimed was employed by first respondent from June 2009 to February 2010 – Respondents claimed applicant investor in entrepreneurial endeavour from June 2009 to December 2009 and then became employee of second respondent - Authority found applicant not employee of either first or second respondent between June and December 2009 – Found applicant never offered or accepted employment agreement – Found applicant never expected to be employed during that period – Found parties agreed would work together to set up second respondent with third and fourth respondents supplying cash equity through first respondent and applicant providing sweat equity – Found from December 2009 until employment terminated in February 2010 applicant employed by second respondent - UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed dismissal for redundancy unjustified – Authority found was unusual situation in that applicant was chief executive officer of second respondent – Found clear that applicant knew first and second respondents in severe financial difficulties – Found appeared from evidence applicant knew business would need to be restructured as condition of gaining investment capital needed – Found applicant offered alternative position - Authority found redundancy was genuine - Found respondents’ actions in dismissing applicant those of fair and reasonable employer – Dismissal justified – ARREARS OF WAGES AND HOLIDAY PAY – Applicant paid two weeks pay in lieu of notice – Found notice period of one month reasonable - Found applicant entitled to further two weeks payment in lieu of notice – Applicant entitled to 8 percent holiday pay on additional two weeks notice period owed - Authority found 25 percent shareholding in second respondent did not form part of terms and conditions of applicant’s employment at date of dismissal - PENALTY – Applicant sought penalty for failure to provide employment agreement – Authority found while no employment agreement provided breach not deliberate – Found draft agreement was drawn up but never finally agreed because events overtook discussion – Application dismissed – Applicant sought penalty against third and fourth respondents for breach of good faith obligations and breaches of employment agreement – Found no evidence respondents did not act in good faith or deliberately breached employment agreement – Chief Executive Officer |
| Result | Applications dismissed (Jurisdiction)(Practice and Procedure)(Unjustified dismissal)(Penalty) ; Applicant granted (Arrears of wages and holiday pay) ; Arrears of wages (Pay in lieu of notice)(two weeks) ; Holiday pay (Quantum to be determined) ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s103A |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Auckland_195.pdf [pdf 40 KB] |