| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 130 |
| Hearing date | 16 Apr 2010 - 16 Feb 2011 (5 days) |
| Determination date | 05 September 2011 |
| Member | J Crichton |
| Representation | J Levenbach ; A Higgins |
| Location | Nelson |
| Parties | Robb v Awaroa Lodge |
| Summary | UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant employed on fixed term agreement and employment came to end upon expiry of fixed term – First employment agreement (“EA”) drafted and provided to applicant which identified employment subject to fixed term – Applicant claimed never signed first EA because did not accept terms and conditions – Applicant claimed told position would be full time and permanent – Applicant claimed refused to sign second EA which also contained fixed term – Applicant asked to manage pizza area and promised full time helper because of responsibilities elsewhere – No helper provided and gardens became overgrown – Complaints made about gardens – Argument ensued between parties about payment of accommodation and food costs – Applicant given letter which stated position redundant – Applicant claimed role later advertised on website – Authority found neither EA signed by applicant – Found second EA reduced applicant’s annual income – Found EAs covered same period – Respondent director (“W”) claimed second EA issued by new person responsible for human resources – Applicant claimed by not signing EAs applicant did not accept terms and conditions of employment – Found EAs did not accord with applicant’s understanding of bargain between applicant and respondent – Found applicant not bound by either EA – Applicant claimed did not receive redundancy letter until two or three weeks after W shouted at applicant claiming applicant redundant – W claimed went through consultation process with applicant – Applicant denied any consultation took place – Found evidence that consultation process delegated to third party not credible – Found no proper consultation – Applicant claimed event that led to redundancy was respondent’s unhappiness with applicant’s performance and irritation about applicant’s claim for accommodation and food costs – W claimed applicant never worked on pizza area – Contractor claimed applicant helped with pizza area – W claimed respondent unhappy with applicant’s performance – Found insufficient evidence about whether position advertised was applicant’s position – Found respondent disgruntled with applicant’s performance – Found issue about reimbursement of food and accommodation also precipitating event – Found no genuine redundancy – Dismissal unjustified – REMEDIES – No contributory conduct – $5,000 compensation appropriate - $500 reimbursement of lost wages appropriate – ARREARS OF ACCOMMODATION AND FOOD COSTS – Applicant claimed W made specific undertaking to pay all food and accommodation costs – Applicant sought unpaid accommodation and food costs – Found without corroboration of applicant’s recollection of discussion with W, Authority could not conclude respondent intended to pay for food and accommodation for applicant – JURISDICTION – Whether employee or independent contractor – Applicant offered cleaning contract – Applicant claimed employee of respondent – Applicant claimed unjustifiably dismissed by respondent – Applicant’s partner covered over security camera in staff dining room – Applicant and partner issued with trespass notice – Respondent claimed applicant accepted contract to operate cleaning services – Found document did not include requirements of EA – Found nothing in document that conveyed flavours of employment relationship – Found contractor in charge of respondent’s wages and other payments clear applicant ceased to be employed by respondent and became independent contractor – Found document contractual rather than EA – Found respondent intended applicant to take over previous cleaning contract – Applicant responsible for forwarding invoice for cleaning services to bookkeepers – Respondent claimed applicant able to employ other employees – Found respondent always had separate entity performing cleaning functions – Found applicant not required to perform duties in particular way – Found absence of GST registration not conclusive factor in ruling out possibility of contractual arrangement – Found applicant was independent contractor not employee – Gardener/Handyman and Cleaner |
| Result | Application granted (unjustified dismissal) ; Applications dismissed (arrears of accommodation and food costs) (jurisdiction) ; Costs reserved ; Disbursements in favour of applicant ($70)(Filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s66;ERA s124;Building Act 2004;Resource Management Act 1991 |
| Cases Cited | Bryson v Three Foot Six Ltd [2005] 3 NZLR 721;Bell v J H L Paint Management Services Ltd unreported, D King, 31 May 2005, AA 204/05 |
| Number of Pages | 18 |
| PDF File Link: | 2011_NZERA_Christchurch_130.pdf [pdf 57 KB] |