| |
Previous Section | Table of Contents | Next Section
Harkins v Crump t/a Nu Coat Painting
11 Feb 2009, V Campbell, AA 41/09, (7 pages)
JURISDICTION – Respondent argued applicant engaged on “labour only” basis as independent contractor – No written employment agreement – At interview, respondent advised applicant of hours of work, hourly rate and that to be “labour only” – Authority satisfied parties intended applicant to be engaged as “labour only” contractor with view to becoming employee – Considering control test, applicant instructed daily and supervised by respondent’s employee – Respondent set applicant’s hours of work and provided equipment – Respondent refused applicant sick leave when applicant claimed hung over – Authority found respondent’s control over applicant typical of employment relationship – Applying integration test, Authority found applicant’s duties and functions central to respondent’s operations – Others working in similar capacity for respondent employed on wages – Under fundamental test, Authority found applicant not in business on own account – Applicant paid PAYE tax and never produced invoices – Applicant had no scope to generate increased earnings or profit – Found real nature of relationship was employment relationship - Applicant an employee - UNJUSTIFIED DISMISSAL – Applicant requested half day off work to recover from night out with friends – Applicant conceded in investigation meeting that when respondent asked if had been on drug “P” all night, had replied “something like that” – Respondent denied leave and gave instructions for work – Conflict in evidence as to when applicant left workplace – Respondent argued applicant left over two hours early – Applicant claimed worked full day – Next day applicant text messaged respondent when respondent late to arrive at work – Respondent told applicant on telephone to wait as wished to talk to applicant about behaviour – Applicant swore and advised was going home sick – Heated argument followed - Applicant said “f** off and go stick it up your a**” then disconnected call – Respondent called applicant back and further argument and swearing followed – Doctor’s medical report not consistent with applicant’s claim that had been vomiting for six days – Authority found in some circumstances where resignation occurs during heated discussion, employer should allow “cooling off” period – This situation did not require cooling off period – Found intention to resign unequivocal – Found when respondent called applicant back respondent merely confirmed that if applicant wanted to leave then could go – No dismissal – Authority noted if had found dismissal occurred, conduct would have been precluded applicant from receiving any awards - Painter
Previous Section | Table of Contents | Next Section
|
 |
