The Employment Relations Authority has
upheld a personal grievance claim for unjustified dismissal after a painter was
told there was no more work for him.
An issue arose whether the painter was an
employee or independent contractor. This
had not been discussed between them. The
employer considered him to be a contractor.
The employee considered himself to be an employee but neither discussed
their understanding with the other.
After looking at all the relevant
factors (control, integration in the business, written documentation, tax
situation, payment provisions, nature of the relationship, ability to work for
others, ability to subcontract, provision of tools of trade, own business and
the parties’ intentions) the ERA concluded that almost all factors pointed to
him being an employee.
As the employer had not followed any
proper process in the dismissal it followed the dismissal as unjustified.
The employee was awarded lost wages
($2,200) and compensation for distress ($3,500) plus costs.
It pays to clearly communicate and
document what sort of relationship is being entered into to avoid acquiring
employees when that was not the intention.
Alan Knowsley
Employment Lawyer Wellington
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