Cases of interest: January 2020

A summary of interesting or topical employment cases.

Pickering v Project Worx 2020 Ltd [2020] NZERA 41

Employment Relations Authority — Personal grievance — Unjustified dismissal — Costs uplift due to conduct of employer

The employee sought to pursue a claim of unjustified dismissal against the employer. The employee made multiple attempts to resolve the matter via mediation. The employee agreed to attend mediation on eight separate occasions; on every occasion the mediation had to be cancelled either because the employer did not respond to communications about the mediation; or, the employer pulled out of the mediation on the day it was scheduled to occur. On three of the eight occasions, the employer did not attend mediation even after the Authority directed the employer to attend.

The employer also failed, twice, to comply with the Authority’s directions to provide employment records and relevant employment information.

The employee was successful in his claims. The Authority found that as the successful party he was entitled to an award of costs against the employer (see para 93).

The Authority increased the notional tariff from $3,000 to $5,000 to reflect that the employer’s conduct unnecessarily increased the employee’s legal costs (see para 97–98).

Pickering v Project Worx 2020 Ltd [2020] NZERA 41 [PDF 335KB]

Dean v Ravenwood t/a Steven Ravenwood Services [2020] NZERA 38

Employment Relations Authority — Employee status — Whether applicant was an employee or a contractor

The applicant claimed she was employed by the respondent as a telemarketer. Her role was to arrange appointments for technicians to maintain heat pumps. The applicant sought to bring claims of constructive dismissal, wages arrears and breach of good faith against the respondent. The employer claimed the employee could not bring a case in the Authority because she was a contractor and not an employee. 

The Authority applied the test for determining whether someone is an employee or a contractor from the Supreme Court case Bryson v Three Foot Six Ltd [2005] ERNZ 372 (SC). The Authority found the applicant was a contractor. The Authority found:

  • At the beginning of the relationship, the parties had a common intention the applicant was to be an independent contractor (see paras 20–33). The employee was able to increase her hourly rate by booking more appointments (see para 23). The original “Telemarketing services agreement” stated the role was commission only and no holiday or sick pay would apply (see para 24). The agreement required the parties to resolve disputes through an independent arbitrator (see para 26).
  • The parties later changed to an arrangement where the applicant was paid per confirmed appointment (see para 27–28). 
  • The applicant had considerable flexibility in when she carried out her work (see paras 33–40).
  • The respondent exercised minimal control over the way the applicant conducted her telemarketing work on a day-to-day basis (see para 44).
  • The evidence on how integrated the applicant was with the company was indeterminate (see paras 45–52). On the one had the applicant conducted training for new telemarketers for no extra payment; on the other hand, the applicant worked from home and used her own computer and phone and phone account to make calls; and she was paid an extra commission for following up on invoices.
  • The applicant claimed expenses such as her phone against her tax liabilities, indicating an independent contractor relationship (see 56–63).The Authority found that, standing back and considering the evidence as a whole, the applicant was engaged and worked as a contractor.

The Authority found it had no jurisdiction to investigate the claim (see para 66).

Dean v Ravenwood t/a Steven Ravenwood Services [2020] NZERA 38 [PDF 52KB]

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