Gary Cotton v Darcee Gosling [2022] NZERA 90 - Identity of employer, unjustified dismissal, and personal liability
In Gary Cotton v Darcee Gosling [2022] NZERA 90, the ERA identified the employer at the outset of the relationship and held Darcee Gosling was personally liable. The dismissal was unjustified and the Authority ordered lost wages, wage arrears, holiday pay and compensation.
This page summarises and displays the Employment Relations Authority (ERA) determination Gary Cotton v Darcee Gosling [2022] NZERA 90. The key point is practical: if the employer identity is unclear, the ERA can determine who the employer was at the outset, and individuals can end up personally liable when they hold themselves out as the employer.
Quick facts
- Citation: Gary Cotton v Darcee Gosling [2022] NZERA 90
- ERA location: Christchurch
- Member: David G Beck
- Investigation meeting: 25 February 2022 (video link)
- Determination date: 16 March 2022
- Issue: Identity of employer, unjustified dismissal, and remedies (lost wages, arrears, holiday pay, compensation)
What the case was about
Mr Cotton asked the Authority to first determine who his employer was, and then determine whether he was unjustifiably dismissed. The relationship arose after a Facebook job advertisement for a firewood operation trading as "Ignite Firewood".
The key factual sequence
- Mr Cotton says he responded to a Facebook job advertisement around 18 April 2021 and started work the next day.
- No written employment agreement was provided at the outset. Key terms were recorded on a single page (hours, days, rate, fuel arrangement).
- Pay problems arose early, with cash then bank transfer payments, followed by an unpaid week and text exchanges about payroll arrangements.
- After Mr Cotton finished work on 6 May 2021 he was told there would be no work the next day, and no further work was provided.
- A Personal Grievance (PG) was raised by letter on 17 May 2021 and the matter was filed in the ERA on 26 July 2021.
Why this case matters
- Employer identity is determined at the outset of the relationship (not after things go wrong).
- If you negotiate terms, control the arrangement, and pay wages from your own account, you may be found to be the employer.
- A lack of a written agreement can increase risk and reduce defences, but it does not prevent a finding of employment.
Key findings (plain English)
- Employer identity: The Authority found Darcee Gosling was Mr Cotton's employer. The evidence included Mr Gosling initiating the engagement, negotiating the key terms, controlling the operation and paying wages from his personal bank account.
- Unjustified dismissal: The Authority found Mr Cotton was summarily unjustifiably dismissed on both substantive and procedural grounds. It was reasonable for Mr Cotton to consider his employment had ended when no further work was offered and the issues were not addressed.
- No contributory conduct reduction: The Authority found Mr Cotton did not contribute to the situation that gave rise to the personal grievance.
- Costs: Costs were reserved, with a timetable for memoranda if the parties could not agree.
Orders and remedies
Darcee Gosling was ordered to pay Gary Cotton
- $10,010.00 gross lost wages (13 weeks, calculated on an average of 35 hours per week at $22 per hour)
- $830.45 arrears of wages
- $131.12 gross unpaid holiday pay
- $8,000.00 compensation without deduction for humiliation, loss of dignity and injury to feelings (Employment Relations Act 2000, s 123(1)(c)(i))
Read the full determination
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