Devon Whitham v Brutalitees Limited and Christine Dawson [2026] NZERA 325

This Employment Relations Authority (ERA) determination is about a tattoo and piercing shop worker who was labelled a contractor but found to be an employee. Devon Whitham worked at Brutal Ink in New Plymouth after responding to a Facebook post for a piercing apprentice. She was paid by reference to a percentage of piercings, was given a contractor agreement, and had no written employment agreement. The ERA found that the real nature of the relationship was employment with Brutalitees Limited. It also found that her dismissal at a heated meeting on 19 September 2024 was both procedurally and substantively unjustified. Brutalitees Limited was ordered to pay unpaid wages, holiday pay, 13 weeks lost wages, $15,000 compensation, and penalties. The full determination is embedded at the end of this page.

The short point

The contractor label did not save the employer. The ERA looked at the real nature of the relationship. Ms Whitham worked set days and hours, used the shop's tools and equipment, performed work essential to the business, served customers, sold shop items, prepared tools, and had no real business of her own. That pointed to employment, not independent contracting.

The dismissal process was worse. Ms Whitham was called to a meeting without being told the allegations, without being told her employment was at risk, and without being given an opportunity to prepare or have support. The concerns and the dismissal all happened in the same meeting. The ERA found that was not what a fair and reasonable employer could do.

Background

Brutalitees Limited operated a tattoo and piercing shop called Brutal Ink in New Plymouth. The business also sold clothing and ornaments. Christine Dawson was the sole director and majority shareholder of Brutalitees Limited.

Ms Whitham became aware of the opportunity through a Facebook post on the Brutal Ink Facebook page in May 2024. The post described the role as an apprentice role. When Ms Whitham asked what qualifications were required, she was told that no qualifications were required and that reliability was the main requirement, but that the role would be unpaid until trained.

Ms Whitham attended an interview or meeting on 17 May 2024. On 21 May 2024 she was asked whether she wanted to come in the next day and do some piercings. She did so, and then kept returning to the shop to perform work at Ms Dawson's direction.

The work was not limited to learning. Ms Whitham performed piercings, prepared and wrapped tools, mopped the piercing and tattoo areas, organised the piercing area, served customers, and sold items through the point of sale system. She used the shop's tools and equipment.

How she was paid

Ms Whitham said she was not paid at first because she was told she was in training. She started being paid after about a month. Payments were made by bank transfer, although she may also have received one or two cash payments.

A contractor agreement was sent to her on 10 July 2024 and signed by her on 9 August 2024. The agreement said she would be compensated at 30 percent of the price of each piercing performed. Ms Whitham would calculate the amount by reviewing the piercings completed and deducting 30 percent, then message Ms Dawson asking her to transfer the payment.

The ERA recorded that Ms Whitham had to chase payment at times. By September 2024 she still had not been paid for several weeks of work. Her last payment was on 2 September 2024.

The 19 September 2024 meeting

On 18 September 2024, after Ms Whitham complained about what was happening including pay, she was told there would be a meeting the next day. She was not told what the meeting would be about. She was not told she could have support or representation. She was not told her employment was at risk.

Ms Whitham attended the shop on 19 September 2024. Ms Dawson and another person, Josh, were present. Ms Whitham began recording the meeting. The recording was produced in evidence.

The ERA recorded that, during the meeting, after discussion about tasks and alleged unsatisfactory performance, Ms Dawson told Ms Whitham that she was not getting paid and was not welcome back. The ERA also recorded that Ms Dawson told Ms Whitham she wanted to smash her, called her disgusting and used abusive language, and ended the meeting by telling Ms Whitham to take her things and leave.

The respondents did not attend the ERA investigation meeting

The respondents had filed a Statement in Reply, but there was little engagement after that. They did not provide witnesses or other information for the investigation meeting. They also did not attend the investigation meeting.

The ERA was satisfied that the respondents had been made aware of the proceedings and the date and time of the investigation meeting. The Authority proceeded by formal proof. That means the applicant still had to prove the claim, but the respondents were not there to give evidence or challenge the evidence in the usual way.

Was Ms Whitham an employee?

The ERA started with section 6 of the Employment Relations Act 2000. The question is the real nature of the relationship. A label in an agreement is not decisive. The Authority considers the practical reality of the relationship, including control, integration into the business, and whether the worker is genuinely operating a business on their own account.

The factors supporting employment included:

• The role was advertised as an apprentice role: that pointed towards training and supervision, not an independent business contract.
• Control: Ms Whitham's days, hours, work, and pay arrangement were set through the business.
• Integration: she performed work that was central to the shop's day to day operations.
• Tools and equipment: she used the business's tools and equipment, not her own business infrastructure.
• No commercial risk: she did not invoice, did not run a separate business, and had no realistic ability to generate profit outside the percentage set by the business.
• Dependence: the economic reality was one of subordination and dependence.

The ERA was satisfied that an employment relationship existed. Ms Whitham was an employee, not an independent contractor.

Was Christine Dawson personally the employer?

Ms Whitham also argued that Christine Dawson was personally her employer, or a joint employer with Brutalitees Limited. That argument did not succeed.

The ERA accepted that Ms Dawson personally managed significant parts of the relationship, but noted that a company can only act through people. A director or shareholder managing employment matters does not automatically make that person the employer. The Statement in Reply referred to Brutalitees Limited as the entity that took Ms Whitham on as a body piercing apprentice. The payment records also showed payments from Brutalitees Limited.

The ERA concluded that the employment relationship was with Brutalitees Limited. Ms Dawson was not found to be the employer or a joint employer.

Was the dismissal justified?

Brutalitees Limited did not deny that Ms Whitham was dismissed. It said the decision was based on repeated breaches of trust, failure to follow hygiene and safety protocols, misuse of business resources, and behaviour placing the business, clients and reputation at risk.

The problem was that the employer did not prove a fair process or a justified outcome. The ERA listened to the recording of the meeting and found that the employer fell well short of the requirements of good faith and procedural fairness.

The key defects were straightforward:

• Ms Whitham was not told what the meeting was about before attending.
• She was not given information in advance so she could prepare.
• She was not told her employment was at risk.
• There was no proper opportunity for her to respond.
• There was no genuine consideration of any explanation before dismissal.
• The concerns and dismissal were dealt with in the same meeting.

The ERA found that these were not the actions of a fair and reasonable employer. Ms Whitham was dismissed on 19 September 2024, and that dismissal was both procedurally and substantively unjustified.

Lost wages for the unjustified dismissal

Ms Whitham claimed 13 weeks lost wages following dismissal. The calculation was based on 25 hours per week, from 12.00 pm to 5.00 pm Tuesday to Saturday, at the applicable minimum wage rate of $23.15 gross per hour.

The ERA accepted that Ms Whitham appropriately attempted to minimise her loss by looking for work after dismissal. Brutalitees Limited was ordered to pay $7,523.75 gross as compensation for wages lost as a result of the grievance.

Compensation for humiliation, loss of dignity and injury to feelings

Ms Whitham said the dismissal had a significant impact on her mental health. She became anxious and distressed about encountering Ms Dawson in public, struggled socially, experienced depression and trouble sleeping, and moved house twice because of fear about Ms Dawson or Josh knowing where she lived.

The ERA accepted the plausibility of that impact given the threats of physical violence, the way the meeting was conducted, the dismissal, and the language used. It awarded $15,000 compensation for humiliation, loss of dignity and injury to feelings.

No contribution reduction

The respondent's Statement in Reply listed alleged wrongdoing by Ms Whitham. But no witnesses, no corroborating evidence, and no respondent participation at the investigation meeting followed. The ERA questioned Ms Whitham about those allegations and was satisfied with her answers.

Ms Whitham had not received any verbal or written warnings about performance or conduct and had not been told her employment was at risk before the dismissal. In the absence of supporting evidence from the respondents, the ERA found no evidence that Ms Whitham contributed to the circumstances giving rise to the personal grievance. No reduction was made under section 124.

Unpaid wages and holiday pay

Ms Whitham also claimed wage arrears for work performed but not paid. Her calculation was based on 25 hours per week over 18 weeks, including the training period, at the minimum wage rate of $23.15 gross per hour. That produced total wages of $10,417.50. She had been paid $3,701.68.

The ERA ordered Brutalitees Limited to pay the balance of unpaid wages, less two days sick leave. The final order was $6,484.32 gross unpaid wages. The ERA also ordered 8% holiday pay of $833.40 gross.

Penalties for minimum employment standards breaches

Ms Whitham sought penalties for failure to provide a written employment agreement, failure to provide wage and time records, and failure to pay wages and holiday pay owed. The ERA was satisfied those breaches were made out and could attract penalties.

The ERA noted that Brutalitees Limited was incorporated in 2011 and had operated a business with other employees. There was no excuse for not meeting the minimum requirement to provide a written employment agreement. There was also no excuse for non-payment of wages and holiday pay. The ERA stated the obvious but important point: minimum employment standards are not optional.

The ERA imposed a penalty of $500 for each breach, for a total of $1,500. Half was ordered payable to Ms Whitham and half payable to the Crown.

Personal recovery against Christine Dawson was declined

Ms Whitham sought leave to recover unpaid wages and holiday pay from Christine Dawson personally under section 142Y of the Employment Relations Act 2000. This was only relevant to the unpaid wages and holiday pay, totalling $7,317.72 gross.

The ERA declined leave. Even if Ms Dawson may have been a person involved in breaches of employment standards, Ms Whitham had not proved that Brutalitees Limited was unable to pay the money owing. Without proof that the employer company could not pay, the Authority could not grant the leave sought.

Why this case matters

This case is a useful employee status case. It shows that a contractor agreement, percentage based payment, and industry practice arguments do not automatically create a contractor relationship. The ERA will look through the label and ask what the relationship really was. Here, the worker was controlled by the business, integrated into its operations, using its tools, serving its customers, and not operating a business on her own account.

It is also a useful reminder that unpaid training is dangerous territory. If a person is doing productive work for the business, performing customer work, using business equipment, and working set hours under direction, the business may be exposed to minimum wage, holiday pay, record keeping and employment agreement obligations.

The dismissal aspect is blunt. A meeting cannot fairly become an ambush. If an employer wants to dismiss for performance or conduct concerns, it must tell the employee what the concerns are, provide relevant information, warn that dismissal is a possible outcome, give a reasonable chance to respond, and consider that response before deciding.

The personal liability aspect is also important. A director may be involved in the conduct, but that does not necessarily make the director the employer. And recovery from a person involved in minimum standards breaches under section 142Y requires proof that the actual employer is unable to pay the arrears.

Practical takeaways

• Labels are not decisive: calling someone a contractor does not prevent a finding that they are an employee.
• Apprentice roles often point to employment: training, supervision and integration are classic employment indicators.
• Percentage pay does not decide status: a commission or percentage arrangement can still sit inside employment.
• Unpaid training can create arrears: if the person is doing work, minimum wage obligations may apply.
• Written employment agreements are mandatory: minimum employment standards are not optional.
• Dismissal meetings need notice: employees must be told the allegations and that dismissal may be an outcome.
• Abusive dismissal conduct increases compensation risk: threats, humiliation and degrading language can support a significant compensation award.
• Contribution requires evidence: unsupported allegations in a Statement in Reply will not usually justify a reduction.
• Director liability is separate: managing the business does not automatically make a director the employer.
• Section 142Y recovery needs proof: personal recovery for arrears requires proof that the employer cannot pay.

Read the full ERA determination (embedded)

If the embedded PDF does not load on your device, use the button below to open it in a new tab.

Mobile / tablet tip: Some browsers do not display embedded PDFs reliably. Use the Open button above.

Source: Employment Relations Authority determination hosted on determinations.era.govt.nz.