Jurisdiction - Employment Relations Act 2000
Burns & Ors v Reliance Transport Ltd
10 Aug 2007, P Montgomery, CA 101/07, (5 pages)
PRACTICE AND PROCEDURE – JURISDICTION – Applicants agreed to lodge consolidated personal grievance actions – Applicants claimed unjustifiably dismissed – Identity of employer preliminary issue – Respondent argued not party to any employment agreement with applicants – Argued applicants employed by third party (“BCT”) who utilised respondent’s goods service licence – Applicants claimed BCT trading name for division of respondent – Respondent held 50 percent shareholding in BCT and remaining shares held by third party – Authority concluded BCT registered company in own right – Applicants claimed BCT work invoiced through respondent which indicated BCT operating as subsidiary – Respondent argued not uncommon for associated businesses to utilise each others’ administration systems and personnel – Authority noted BCT faced considerable hurdles in establishing operations in region due to first applicant’s involvement in BCT – First applicant previously controlled two failed companies which left large number of regional community unpaid – Respondent argued result that regional business community reluctant to deal on credit basis with BCT – Argued pragmatic approach to make purchases for benefit of BCT through respondent – Authority found at time grievances raised applicants knew identity of employer to be BCT – Found attempt to involve respondent when extreme financial position of BCT became apparent – Authority satisfied on evidence provided BCT not merely trading name of respondent and was complete separate entity – Authority also satisfied applicants employees of BCT as no evidence of wages paid by respondent – Applicants failed to establish employment agreement existed with respondent – No jurisdiction
Result: Application dismissed ; Orders accordingly ; Costs reserved
Wallbank v Lewthwaite Engineering Ltd
30 Jul 2008, V Campbell, AA 269/08, (8 pages)
JURISDICTION – Respondent argued never employed applicant - Applicant did casual work for respondent during holiday period of prior employment – Applicant claimed discussed what job would entail at length and was offered job – No written employment agreement – Respondent argued if had offered applicant job, would have provided written employment agreement – Argued salary claimed not possible due to company profit and as applicant did not have a particular qualification – Authority found conceivable that offered claimed salary given similar salary and role of another employee of respondent – Applicant given access to pooled company vehicle – Respondent paid for applicant to undertake safety competence course as representative of respondent – Respondent conceded applicant undertook some work for respondent – Applicant paid twice by cheque - Authority satisfied that fortnightly salary payment for salary claimed, net of PAYE, equated to amount paid in cheque – Found more likely than not that applicant employed by respondent – Authority had jurisdiction - ARREARS OF WAGES AND HOLIDAY PAY – Applicant employed four and a half weeks – Received two payments during employment – Shortfall in what was paid and what ought to have been paid outstanding ($1,406.25) – Authority satisfied holiday pay outstanding ($375) - UNJUSTIFIED DISMISSAL – Respondent travelled overseas – On return, discovered information had given applicant had been passed on to applicant’s wife, then to respondent’s wife – Applicant claimed respondent told him was dismissed – Respondent claimed told applicant off for discussing personal business, and applicant not returned to work since conversation – Authority found respondent dismissed applicant by telephone – Dismissal carried out with no procedural fairness and no basis for justification – Dismissal unjustified – Remedies – Applicant found new employment after three weeks – Authority found applicant entitled to reimbursement of three weeks lost wages ($2,812.50) – Applicant provided little evidence to support claim for compensation for distress and humiliation – Authority considered levels of awards for similar circumstances – $1,500 compensation appropriate – No contributory conduct - PENALTY – Applicant claimed penalties for respondent withholding wages and holiday pay and failing to provide written employment agreement – Authority found respondent breached Wages Protection Act by failing to pay applicant entire amount of wages as they became payable – Having regard to circumstances and interests of justice, Authority declined to order penalty – Authority found respondent aware of obligation to provide written employment agreement – Found likely that had recorded relationship, problem may not have occurred – Penalty of $250 to be paid to Crown – Costs reserved - Building site supervisor
Result: Application granted ; Arrears of wages ($1,406.25) ; Holiday pay ($375) ; Reimbursement of lost wages ($2,812.50)(3 weeks) ; Compensation for humiliation etc ($1,500) ; Penalty ($250)(Payable to Crown) ; Costs reserved
