Employment Relations Authority
 

Hi All

We have been in NZ for just over three years and are currently having a bit of a problem with a past employer who offered my husband a job, which we gained 50 points for, whom my husband worked for a period of 18 months and who now claims never employed him.

Its been a bit of an ongoing complaint and we have recently failed to resolve the matter at mediation, so now have to attend the authority for further proceedings.

Due to the expense, we are trying to handle the case ourselves, following research on the Bryce V's Freefoot case (employee/contractor). Unfortunately my husbands old boss has a solicitor speaking for him and left us as lay people a bit tongue tied, at the mediation session.

Its quite a long story - too long for here, but if anyone is willing to review our case and can give us some advice or is willing to get involved to some extent, we will be eternally grateful. This experience, as you can imagine, has been extremely stressful.

This is quite a heavy subject for british expats but need some help and thought that this would be the best place to find it, so appologies in advance.

Thanks Debbie and Simon

Re: Employment Relations Authority
 

Debbie & Simon,

I am a barrister and QS, specialising in construction & engineering disputes here in the UK, but from time to time I am requested to review cases / problems from other areas of the law.

In those situations where the area of law is new to me, I have to research in order to be able to acquire the knowledge and hence provide advice, and can I suggest you do the same? You should be able to acquire various books on the subject and although it will mean a crash course in employment law, believe you me, you will be very well armed for future hearings and more importantly, be able to follow the process and maximise your return.

The employer's solicitor is aware that you are both fish out of water regarding the law and is no doubt, showing off (something which all us lawyers do!).

Is there not a CAB equal in NZ? (I cannot recall one when I lived there).

Best of luck.

Re: Employment Relations Authority
 

Yep, there is definitely a citizens advice bureau in NZ - phone book. Actually, does the ERA have any recommendations?

Good luck.

Re: Employment Relations Authority
 

One of my former duties for a national comany in NZ was the HR function.

I understand it is difficult for an employer to argue that it is a non-employment situation, if the term is greater than 12 months and the person is substantially working for the same business on a continuous basis. That is, even if there is a contract in place explicitly stating the person is not an employee, the law may all the same imply an employment relationship.

There are lots of little ins and outs, and an employer may argue that the contract specifies a role and term encompassing a particular discrete project only. On the other hand, it is usual that an employee/contractor could argue they were also involved in general duties outside of that discrete project.

I must caveat the above with a note that I am not a lawyer nor a HR professional, and obviously the facts of each case will determine the legal outcome.

Presumably you're pursuing a PG case, because redundancy itself is not normally worth a lot, and probably not worth pursuing?

Re: Employment Relations Authority
 

If you gained the 50 points for the job offer, then you should have given a contract of employment/letter from the employer, stating terms and conditions which you would have enclosed with your PR or work permit application to NZIS. Did you do this?

Re: Employment Relations Authority
 

Hi Bevs and all,

Yes we have an offer of employment letter and the employer did sign a declaration on a form for the NZIS which we have copies of. His solicitor was arguing at mediation that on one of the questions his client has answered, was that the offer was either that of a contractor on witholding tax or paye on less per hour but this was never picked up by us or immigration!

We had the stamp on our visas that said that Simon had to take up his offer of employment and work for his employer for a minimum of 3 months to satisfy the visa, which he did.

It was never discussed either way between Simon and his boss but after arriving in the country after one day, his boss downloaded the tax form and told simon which code to put down. He also said that he would need a tax number to get paid. It turned out that the code was for witholding tax, although as I said this was never discussed with Simon.

Simon had worked for him continuously for 18 months, he only got an accountant after the first year as a way to claim back some of the tax he had paid. He was on $21 a hour ( $1 more than his co-workers) as he was a foreman. After 14 months he requested a payrise and was put on $22 an hour. Around March time after Simon had been working for him for about 5 months, he started requesting that Simon issue him with invoices for his hours worked so that he could cover his own tax purposes. We did that and Simon just thought that he was a bit dodgy but never thought any more about it. His boss has (to confuse matters) paid some PAYE and some ACC payments!

We have listed over 20 reasons why we beleive he was an employee, such as the immigration declaration, job offer, his boss supplied him with tools, work clothing, a van to use, petrol card, his job title was foreman painter, his own business advert states that he doesnt employ contractors and he only employs qualified tradesment, he introduced Simon as his foreman painter to clients and other employees, Simon filled out time sheets, his boss directed him to work, what to do and how to do it, unless the boss wasnt present on site when Simon acted as foreman and directed his co workers, he was sacked, etc etc.

We are claiming: unfair dismissal, holiday pay, stat days, ACC levies and compensation. He offered a measily sum at mediation, which we believe he only attended as stalling tactics. Since our dispute he has become a limited company and is slowly selling off all his assets (properties) on Trade Me. He was also pleading at mediation that his business was doing really badly and he couldnt offer much money. He wanted to pay his measily offer in instalments.

His solicitor was arguing the points that Simon had accounts prepared as a sole trader, he received invoices for hours worked from Simon, the time it took to bring the complaint and that his client had filled out the NZIS form stating the job offer was for a contractor on witholding tax.

We have researched Bryce V freefoot case and the similarities are striking. As lay people, you always think that you are missing something or will not argue your case clearly enough and knowing he has a smooth bast*** solicitor acting on his behalf. It has cost us $1000 so far and lots and lots of stress in the process.

Any other suggestions, cases I can review would be great.

I am wondering whether I should do a letter to immigration to find out there thoughts on their form and the signed declaration etc.

Re: Employment Relations Authority
 

Sorry for the long one by the way!

Re: Employment Relations Authority
 

I think both sides have an arguable case. Your hubby's apparent acceptance of the contractor status by preparing self employed accounts is your biggest hurdle (IMO). I don't think what Immigration thinks is particularly relevant.

Anyway, all the best. I hope somebody more knowledgeable than myself can offer some more guidance.

Re: Employment Relations Authority
 

That should not affect your ability to claim monies off him (if successful in your claim(s)) - even if he engineers his own personal bankruptcy (and that would be a very extreme move on his part if he wants to stay in business), any wealth transfers in the last 12 months (at least) can be contested.

He will always plead poverty, but ultimately he is running a business that on the face of it looks successful, and if so there will be financial accounts he will need to produce.

Re: Employment Relations Authority
 

To add a further note to this thread, we have now received a letter from his solicitor offering a rather better financial settlement.

We are still unable to accept this offer due to unacceptable conditions placed on the offer. (He wants to settle on his terms!) But we are quietly pleased that he appears to be running scared or is at the very least is extremely nervous of the outcome if/when the case proceeds further.