Kurt Bayer

Kurt Bayer is an NZME. News Service reporter based in Christchurch.

Fisherman awarded $80,000 for unfair dismissal

File photo / Paul Estcourt
File photo / Paul Estcourt

A Nelson fisherman accused of slacking off and telling competitors of deep sea fishing giant Sealord where the good fishing spots are has won $80,000 in an unjustified dismissal case.

Aaron Pickering was bosun on the Will Watch, fishing out of Port Louis, Mauritius in the Indian Ocean, when he was let go in September 2010.

Mr Pickering says his dismissal was "one of the most distressing times of his life'' and raised a personal grievance with the Employment Relations Authority, claiming he was unjustifiably dismissed. Sealord claimed he was an independent contractor for another company, United Fame Investments Ltd, which operates the Will Watch.

But in a new judgment, ERA member Christine Hickey found that he was in fact employed by Sealord, and that he was unjustifiably dismissed.

She ordered the company to pay him $71,973 in lost wages, plus 5 per cent interest from April 1 last year, as well as $8000 compensation.

During the ERA process, Sealord argued that it was industry practice for New Zealand-based fishers engaged in fishing on ships in international waters operating out of foreign ports to be engaged as independent contractors on a share catch payment system only.

However, Ms Hickey found there was no evidence that Sealord told Mr Pickering during his employment or at the time of his dismissal that it was an agent for United Fame and that United Fame was his employer.

"Therefore, Sealord cannot avoid its obligations as Mr Pickering's employer on the basis of its role as United Fame's agent in these circumstances,'' she said.

"After carefully weighing all the relevant factors I find the balance of the evidence weighs in favour of an employer/employee relationship. That is the real nature of the arrangement between Mr Pickering and Sealord was that Mr Pickering was an employee of Sealord alone, and not jointly with United Fame.''

Mr Pickering had worked on the Will Watch for three-and-a-half years when a new skipper, Chris Howarth, raised concerns during a May 2010 trip over his performance.

They accused him of "slacking off'' and of passing confidential information about a "valuable'' fishing hill to the skipper of a competitor's vessel.

Mr Pickering denied the serious accusations, but in September 2010, was told that he was no longer required on the ship.

The ERA found that there was no disciplinary process in relation to Mr Pickering's alleged poor performance and Sealord failed to act in accordance with common law requirements of procedural fairness.

"Overall I do not consider that Mr Pickering was treated fairly by Sealord,'' Ms Hickey said.

"Therefore, I consider that the decision to dismiss Mr Pickering was not one that a fair and reasonable employer would have made in all the circumstances the decision to dismiss was made.''

The parties were encouraged to resolve costs themselves.

- APNZ

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