| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 206 |
| Hearing date | 5 Sep 2011 |
| Determination date | 20 December 2011 |
| Member | P Cheyne |
| Representation | K Dowling ; A Sim |
| Location | Invercargill |
| Parties | McElrea v Sim Ag Contracting Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – Applicant claimed was employee of respondent and was unjustifiably dismissed – Respondent claimed applicant was independent contractor – Respondent principal (“S”) claimed gave applicant numerous options about type of working arrangement when applied for position and applicant opted for independent contractor arrangement – S claimed applicant had said was GST registered – Applicant claimed opted for employee arrangement – S gave applicant instructions about all aspects of job – Applicant gave invoices to S without inclusion of GST number or GST – S asked applicant why invoice did not include GST and applicant said was not GST registered – Applicant claimed was required by S to provide GST invoice in order to receive pay cheque – Authority found applicant and S discussed GST including registration before applicant was engaged by respondent – Found applicant given choice about which working arrangement was preferred before agreement reached on independent contractor arrangement – Found applicant paid monthly or less frequently – Found applicant worked on casual basis depending on weather conditions, availability of work and own availability – Found no direct evidence of industry practice – Found there was mutual intention to establish independent contractor relationship – Found applicant had measure of independence in terms of hours worked but otherwise respondent controlled performance of applicant’s work – Found no opportunity for applicant to profit or lose from management of business – Found elements that indicated something other than ordinary employment were invoicing and payment arrangements – Found applicant elected self-employment and could not pursue personal grievance – No employment relationship – No jurisdiction |
| Result | Application dismissed ; No order for costs |
| Main Category | Jurisdiction |
| Statutes | ERA s6 |
| Cases Cited | Bryson v Three Foot Six Ltd [2005] NZSC 34;Bryson v Three Foot Six Ltd [2003] ERNZ 581;Telecom South Ltd v Post Office Union (Inc) [1992] ERNZ 711;Massey v Crown Life Insurance Co [1978] 2 All ER 576 |
| Number of Pages | 8 |
| PDF File Link: | 2011_NZERA_Christchurch_206.pdf [pdf 38 KB] |