Jurisdiction - Employment Relations Act 2000
Bell v GK & CL Whiting Harrison Ltd
14 Aug 2007, P Montgomery, CA 102/07, (9 pages)
JURISIDICTION - Whether employee - Short term employment - Applicant alleged accepted full time employment and dismissed after one day - Respondent claimed applicant offered trial to determine whether had required skills - Submitted applicant unsuitable so paid him for day’s work and took matter no further - In addition, argued only engaged independent contractors, not employees - Significant dispute of facts - Matter complicated by lack of documentation, imprecision of dates and brevity of engagement - Authority had regard to parties relative experience in building trade and industry practice - More likely than not applicant engaged for trial to determine if suitable for contractor position - Applicant not an employee - Authority recommended respondent adopt practice of providing documentation for trial periods - Gib fixer
Result: Application dismissed ; Costs reserved
Clark v Dargaville High School Board of Trustees
31 Oct 2007, R Arthur, AA 344/07, (9 pages)
JURISIDICITON - Whether Authority could consider all of applicant’s claims - Applicant alleged constructively dismissed - Previously commenced proceedings in District Court alleging respondent negligent in duty of care to provide safe workplace, breached contractual obligations to approve salary increase, defamed him through comments in personnel file and failed in obligation to support him to full teacher registration - Proceedings stayed by Court as matter within Authority’s jurisdiction - Court reserved leave for applicant to seek to remove stay if Authority unable to remedy legitimate grievance - Taken as reference to whether Authority could order injunction requiring removal of documents from applicant’s personnel file - Authority able to investigate all of applicant’s claims and had adequate powers to remedy any legitimate grievance - Injunctive relief to enforce contractual obligations open to Authority as remedy – Claim pleaded in “language” of torts - However, Authority not bound to treat matter as type described - Factual basis of claims gave rise to employment relationship problems as defined by Employment Relations Act 2000 (“ERA”) - Matter within exclusive jurisdiction of Authority - Although exemplary damages not available Authority did not consider this would support argument applicant might have outstanding claims to be heard in civil courts - PRACTICE AND PROCEDURE - Application for removal to Employment Court - Respondent submitted applicant likely to challenge any adverse determination - Also concerned about applicant’s ability to pay costs if unsuccessful - Applicant presently living overseas and respondent wanted security for costs, an order it submitted was only available from Employment Court - Neither ground triggered specific criteria in ERA - No factual foundation offered for suggestion security for costs required or that applicant would be unlikely to meet costs if ordered - If Authority not able to order security for costs, that could not, on its own, be reason for removal to Court - Such orders unnecessary in light of modest level of costs usually awarded in Authority - Application for removal declined - Matter to proceed to investigation - Teacher
Result: Orders accordingly ; Costs reserved
Faith v Taonga imports Ltd
28 Aug 2007, M Urlich, AA 261/07, (8 pages)
JURISIDCITON - Whether employee or business partner - Applicant and respondent’s director relatives - Set up respondent together - Applicant claimed was employee and 50% shareholder of respondent - Respondent argued applicant partner in business, not employee - No written employment agreement - Business structure drawn up by accountant indicated applicant would be employee - Payment to applicant as “drawings” changed to “salary” once business opened - Tax and holiday pay issues not conclusive - Integral test not determinative because would expect working partner to be integral - Applicant managed business but had no say in how funds invested - Applicant employee from time business opened until employment relationship ended - Whether grievance raised within 90 days - Applicant’s letter stated taking constructive dismissal claim with no further details - Respondent sought further details to enable it to respond - Reply by applicant’s solicitor wrongly addressed and never received by respondent - Applicant’s original letter not sufficient to raise personal grievance - Applicant could apply for leave to raise grievance of time - Manager
Result: Orders accordingly ; Costs reserved
Moore v PG 2000 Ltd
12 Sep 2007, D Asher, WA 127/07, (6 pages)
JURISDICITON - PRACTICE AND PROCEDURE - Whether applicant’s claim statute barred by s317 Injury Prevention, Rehabilitation and Compensation Act 2001 (IPR&C Act) - Applicant alleged exposed to tungsten and cobalt during employment which resulted in health problems - Sought compensation from respondent - Respondent denied causal link between work and health problems - Applied to strike out claims on grounds barred by IPR&C Act - After Department of Labour OSH investigation hazards were remedied and new practices adopted - Applicant later resigned and successfully applied for ACC - No reason to find respondent either knew, or should reasonably have known, applicant’s working conditions breach health and safety obligations - Not an unjustified disadvantage case - Damages claimed by applicant arose directly or indirectly from personal injury - Applicant statute barred from pursing matter in Authority - Fitter and turner
Result: Application dismissed ; Costs reserved
Pirimona & Anor v Wilson & Anor
8 Aug 2007, P R Stapp, WA 109/07, (17 pages)
JURISDICTION - Whether employee or independent contractor - Respondent exercised sufficient control over first applicant and his considerable hours meant integrated into business - First applicant an employee of second respondent - Second applicant claimed employed by first respondents personally - Worked infrequently on casual basis and directed on whether or not could work - Limited records led to conclusion second applicant employee of first respondents - UNJUSTIFIED DISMISSAL - Open to first respondents to cease offering work to second applicant as casual employee - No grievance - Altercation developed between second applicant and respondents and first applicant chose to leave with her - First applicant’s submission he left because upset asked to spy on contractor for respondent not credible given time delay - Applicants’ behaviour, evident at investigation meeting, added significantly to situation - Would have disentitled them to any remedies if had been unjustifiably dismissed - ARREARS OF WAGES HOLIDAY PAY - Arrears of holiday pay due and owing to both applicants - First applicant also owed wages and payment for sick days, but not entitled to payment for unused sick leave - Arrears to be offset by sum already paid by respondent - Caretakers
Result: Application granted (Arrears) ; Arrears of holiday pay ($8967.25)(Payable by second respondent to first applicant); ($381) (Payable by first respondents to second applicant) ; Arrears of wages ($1,417.50 less $1,000)(First applicant) ; Application dismissed (Dismissal) ; Disbursements in favour of applicants ($70)(Filing fee)
