Missing employment contract leads worker to file case against wrong employer

No written agreement causes confusion over real boss' identity

Missing employment contract leads worker to file case against wrong employer

The Employment Relations Authority (ERA) recently dealt with a case about identifying the correct employer, where a worker had raised concerns over his work arrangements and sought to establish whether he was employed by an individual business owner or a company.

The case centred on employment relationship fundamentals - there was no written employment agreement in place when the worker started his role. When workplace issues arose, he filed a claim against the individual business owner, believing this person was his employer.

The proceedings expanded to include the owner's company as a potential employer. Questions emerged about the nature of employment, work arrangements, and who held legal responsibility as the employer.

Clear employer identification matters

The ERA's determination revealed that this employment relationship started with a critical oversight - there was no employment agreement in place to identify the employer.

As stated in the decision, "[the company] did not identify itself as a limited liability company" in the job advertisement.

The business owner functioned as the sole director of the company. The ERA noted this relationship in its determination: "[The business owner] is the sole director and spokesperson of [the company]... No employment agreement was provided to [the worker] which would have identified who [the business owner] saw as the employer."

During the proceedings, translation of WeChat messages became significant. The decision stated that "it would have been preferrable if the identity of the person who had provided the translation was mentioned earlier and/or an independent source of translation, at least for critical portions, sought."

Employment status findings

The Authority examined whether the employment was permanent or casual. Their determination, listed in paragraph 3 of the decision, confirmed that "the work was permanent rather than casual" and found that "[the worker] was disadvantaged by unjustified action of [the company] in not providing him with full time work."

In determining remedies, the ERA awarded the worker $838.23 in lost wages and $1,000.00 in compensation. The decision noted that "[the worker] had no other basis on which to achieve his success in being awarded $1,838.23 against [the company], other than to pursue litigation."

The Authority ultimately determined that the company, not the individual business owner, was the employer. This decision was "made by a fine margin," according to the determination.

Authority orders final resolution

After considering costs applications from both parties, the ERA made its final orders. The worker sought $8,000 as a tariff for two days, plus an additional $1,000 relating to translation issues. The company argued that the worker should receive only 3% of the standard tariff based on the proportion of his claims that succeeded.

The Authority's decision outlined that "Standing back and looking at the justice of the matter overall I consider that [the worker] should receive an award of costs of $5,000 and no other award should be made."

The final determination ordered the company to pay $5,000 in costs plus the Authority's filing fee of $71.55, with payment due within 28 days of the determination date.