Jurisdiction - Employment Relations Act 2000
B & D Doors (NZ) Ltd v Blaker
22 Jun 2007, J Wilson, AA 188/07, (3 pages)
JURISDICTION - COSTS - Respondent successfully sought compliance with earlier costs order in its favour - Sought contribution of $870 to total costs of $1,312 incurred obtaining compliance order - Alleged order required as applicant failed to communicate with respondent about issue and ignored costs determination - Applicant argued matter simple and high costs not warranted, also original costs award subject of challenge - Submitted as costs not sought when compliance order applied for, awarding costs after matter concluded exceeded Authority's jurisdiction - Although Authority sympathetic to respondent's position, it did not raise question of costs when applied for order - Compliance determination made no order for costs and did not reserve issue - Application for compliance concluded by issuing of earlier determination - No order for costs
Result:
Application dismissed ; Orders accordingly ; No order for costs
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Balfour v Central Hawkes Bay Support and Counselling Service Inc
31 Jul 2007, P R Stapp, WA 107/07, (6 pages)
JURISDICTION - RAISING PERSONAL GRIEVANCE - Applicant claimed respondent breached confidentiality provision in record of settlement by supplying documents to Police under search warrant - Alleged respondent did not act in good faith when it did not disclose certain documents to him before settlement - Applicant raised personal grievance after received discovery of documents seized by Police - Respondent challenged Authority's jurisdiction to proceed with allegations and claimed any personal grievance raised out of time - Applicant no longer employee of respondent and none of his terms and conditions of employment survived end of relationship, save for terms of settlement as matter of contract - Settlement between parties full and final - Applicant could not succeed with claim of personal grievance and breach of good faith - Applicant aware other matters could come to light after final settlement and took that risk - Questions about search warrant's accuracy and breaches of privacy not matters within Authority's jurisdiction - BREACH OF CONTRACT - GOOD FAITH - Also claimed respondent acted dishonestly and colluded with ACC and Police to deceive him - ACC brought fraud proceedings against applicant - Applicant sought costs of successful defence in District Court - Submitted cost directly caused by respondent keeping and giving copy of settlement and other documents to ACC under search warrant, and documents should have been destroyed or kept secure - Appeared respondent tried to keep information on applicant confidential, while leaving clear impression with ACC and Police in possession of some documents - Respondent's president told truth at time, nothing less that what would be expected - President had to comply with search warrant and Authority accepted she did what she believed she had to do in circumstances - Defence accepted - Record of settlement open to scrutiny for enforcement and to meet legal requirements even though confidential - Without wilful and deliberate conduct in being party to ACC's enforcement role, respondent could not be held liable for costs between applicant and ACC in form of damages - Claims for breach of confidentiality and good faith dismissed
Result:
Application dismissed ; Costs reserved
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Baugen v Gavin & Susan Ure t/a Affordable Plumb& Gas Ltd
13 Jun 2007, G J Wood, WA 93/07, (8 pages)
JURISDICTION - Whether employee or independent contractor - Applicant completing adult apprenticeship - Required to work under supervision or in employment of registered drainlayer - Respondents agreed to take on applicant on understanding he was sub-contractor - Apprenticeship training agreements treated as part of employment agreement only when nature of relationship between parties already one of employment - Applicant paid on invoice for hours worked on jobs - Aware paid more than standard apprenticeship rate as had to provide for own tax - Applicant later started own drain clearing business with respondents' support - Invoiced respondents separately when performed this work and also performed work on own account for other parties - Applicant advertised new business under different name from respondents - Clear at time relationship entered into parties had common intention that it be one of contractor and sub-contractor - In normal course of events Authority would accept apprenticeship, with associated training and supervision, most likely to involve employment relationship - However, nothing in industry training legislation dictated relationship be one of employment - Control test did not favour either party as while respondents had level of control over applicant's working day he was able to work on own account - Applicant not greatly integrated into respondents' business - Applicant had experience in business and tax requirements - Fundamental test pointed towards contracting relationship - Real nature of relationship not employment - Independent contractor - No jurisdiction - Drainlayer
Result:
Application dismissed ; Costs reserved
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Belich v Rusty Pelican Ltd
29 Mar 2007, R Arthur, AA 97/07, (11 pages)
JURISDICTION - Whether employee or independent contractor - All shares in respondent company ("RPL") owned by R&R through joint share and trust - Applicant and husband discussed buying RPL - Applicant and husband unable to raise required funds to buy business outright - Applicant, husband and two others ("G") formed 3PL Ltd in order to buy 45% of shares in RPL - Applicant, husband and G's ("Group B") to work in business - Arrangement formalised ("shareholders arrangement") - R&R to continue as majority shareholders ("Group A") - Applicant, husband and G to own one share jointly with another 499 shares owned through 3PK Ltd - Transfer of shares not completed and registered until later date - R&R left for Australia and Group B became responsible for day to day operations - Applicant accepted work for company had changed&R became concerned about financial state of busi&R had meeting &R instructed business consultant ("SAS") to act on RPL's behalf in all business and financial matters - SAS instructed to take whatever steps necessary to ensure continuity - Two companies incorporated to purchase assets of RPL - R&R told applicant could no longer have access to company accounts - Applicant an employee - Applicant remained responsible to and was directed &R - Inference from actions of parties applicants employment intended to be continuous - Authority found provisions of shareholders agreement amounted to contracting out of Employment Relations Act - Indemnity provisions of shareholders agreement illegal and unenforceable - UNJUSTIFIED DISMISSAL - Provision where Group B shareholders to ind&R to be treated as removed from document -Applicant suspended under provisions of shareholder agreement - Insufficient evidence of financial information being compromised to justify suspension - Did not turn minds to applicants rights as employee - Concerns about financial situation not fairly put to applicant - Indefinite suspension made unjustified disadvantage an unjustified dismissal
Result:
Application granted ; Reimbursement of lost wages ($8017.33) ; Compensation for humiliation etc ($6000) ; Costs reserved
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Daley v Tremain Real Estate Ltd
19 Oct 2007, P R Stapp, WA 142/07, (4 pages)
JURISDICTION - Whether employee or independent contractor - Applicant approached to fill position of sales manager for respondent's real estate business - Applicant claimed promised employment - Applicant commenced selling real estate to get to know area, staff and business - Claimed respondent reneged on deal to employ him in managerial role and offered sales role instead - Dismissed later that year - Respondent relied on contract engaging applicant as sales person and independent contractor under Real Estate Agents Act 1951 - Not plausible applicant promised employment and engaged in interim arrangement - Contractor's agreement comprehensive and managing director continued to act as sales manager until recruited right person - Applicant continued to sell real estate and raised no dispute when someone else engaged in position he claimed was promised to him - Other submissions relied on by applicant ambiguous and not enough to override parties' signed contract - Applicant independent contractor - No jurisdiction - Real estate agent
Result:
Application dismissed ; Costs reserved
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Hunt v Air New Zealand Ltd
31 Mar 2008, J Crichton, CA 29/08, (10 pages)
JURISDICTION - Respondent resisted personal grievance and arrears claim on basis related to applicant's dealings with ACC - Submitted Authority lacked jurisdiction - Respondent an accredited employer and provided accident compensation entitlements to employees as agent of ACC - Essentially applicant's complaints were problems with ACC agent, not employment relationship problems, even though employer was agent - Authority prohibited by Injury Prevention, Rehabilitation and Compensation Act 2001 from inquiring into matters within ACC domain - With one exception, Authority had no jurisdiction - Authority able to hear complaint about behaviour of respondent's HR adviser - RAISING PERSONAL GRIEVANCE - Grievance notified to respondent concerned only ACC matters and did not raise HR manager's comments - Also raised out of time - No valid personal grievance raised - In any event, HR manager had clarified position when applicant expressed anxiety and made it clear frustration of contract did not apply to applicant at that time - Application dismissed - Storeman
Result:
Application dismissed ; Costs reserved
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Pantoja v GN Networks Ltd
11 Sep 2007, J Wilson, AA 281/07, (5 pages)
JURISDICTION - Whether employee - Respondent claimed never employed applicant - Alleged offer of employment made on behalf of proposed new joint-venture company - Respondent claimed decided not to continue involvement and new company did not go ahead - While applicant assisted respondent with due diligence into new venture, work undertaken in nature of consultancy - Worked without payment on understanding would be appointed CEO of new company - Applicant never employed by respondent - No jurisdiction
Result:
Application dismissed ; Costs reserved
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Saleh v Encos Global Systems Ltd
4 Jul 2007, P Cheyne, CA 73/07, (11 pages)
JURISDICTION - Whether employee or independent contractor - Applicant initially engaged as contractor and invoiced respondent through his company - Applicant claimed subsequently offered full time employment by director - However, respondent provided copy of email from general manager inviting applicant to sign employment agreement - Applicant's response made it clear parties' relationship was through his company, not employment, and assured respondent operating own business and did not want to change - Evidence applicant not asked to commit all time to respondent accepted and applicant did other work - Applicant provided with contractor agreement but did not sign it as accountant advised him would be to his advantage "if things got messy" - Some measure of integration - Applicant enjoyed significant degree of flexibility over how worked - Treated money received from respondent as income from operation of business - Applicant intended contractor relationship and common intention arose after email exchange with respondent - Just to determine applicant never engaged as employee - Independent contractor - No jurisdiction - Claim and counterclaim dismissed - PRACTICE AND PROCEDURE - After investigation meeting, applicant alleged respondent altered emails provided as evidence to Authority - Authority unconvinced anything sinister in differences between printed emails - Not probable respondent tampered with emails as alleged - Order prohibiting publication of respondent's commercial information disclosed during investigation - Creative director
Result:
Application dismissed ; Counterclaim dismissed ; Orders accordingly : Costs reserved
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Taylor v Afu Finance Ltd
19 Sep 2007, J Crichton, CA 114/07, (6 pages)
JURISDICTION - Whether employee or independent contractor - Respondent claimed all workers contractors not employees - Applicant denied signing contractor agreement when started work - Application form labelled "for contractors" not determinative and applicant did not understand what signing - Unfair for her to be taken advantage of in situation - Respondent directed applicant's days and places of work, and no invoices submitted - Applicant an employee - UNJUSTIFIED DISMISSAL - Applicant given letter terminating engagement with seven days notice - Substantively and procedurally unfair - Dismissal unjustified - Hairdresser
Result:
Application granted ; Reimbursement of lost wages ($6,500) ; Compensation for humiliation etc ($4,000) ; Costs reserved
