| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 33 |
| Hearing date | 22 Dec 2011 |
| Determination date | 23 January 2012 |
| Member | E Robinson |
| Representation | M Nutsford ; J Vickers |
| Location | Auckland |
| Parties | Waterman v Web Partners Ltd |
| Summary | JURISDICTION – Whether employee or shareholder – Applicant claimed unjustifiably dismissed by respondent - Respondent claimed applicant was shareholder – Respondent’s director (“E”) claimed parties had amended shareholder agreement (“SA”) to reflect parties’ agreement that E, third party (“A”) and applicant would become shareholders of respondent – E produced unsigned SA as evidence – A claimed parties agreed applicant would have share of respondent and applicant would work full time – Applicant claimed E informally offered applicant 30 per cent shareholding but denied had seen or signed SA – Amended SA identified applicant and E as shareholders and stated 30 per cent of shares would be “held” for applicant – E claimed parties not paid salary but assessed how much money could take from respondent for personal use each month – Applicant claimed paid on “piecemeal” basis and was similar salary to previous employment – E claimed paid PAYE contributions as way of offsetting provisional tax liability – Accounting advisor (“N”) claimed respondent’s way of addressing tax liability was common practice in small businesses – N claimed applicant’s expenditure claims unsupported by receipts and not common for employees to submit expenditure claims without providing receipts or invoices – E denied applicant’s working hours equivalent to fulltime employee and claimed applicant controlled own hours and when took annual leave – E denied applicant acted under E’s control at all times – Applicant signed another employee’s employment agreement (“EA”) on respondent’s behalf – Applicant claimed E said no longer interested in working with applicant and suggested either one party buy other out or parties clarify roles – Applicant claimed when arrived at workplace ignored E’s instructions to leave premises and remained at work for rest of day – Applicant claimed E emailed applicant two days later and said applicant “immediately dismissed as employee” – Applicant applied to District Court seeking half share of respondent’s assets and arrears of wages and holiday pay – Authority found applicant claimed irrespective of shareholding was also employee of respondent – Found applicant aware of SA and its amendments – Found common intention that E and applicant shareholders in respondent – Found applicant did not request EA as believed was shareholder – Found integration test not determinative of parties’ relationship – Found fluctuating amounts applicant paid more consistent with shareholders’ drawings clause in SA and PAYE payments not determinative of employment relationship – Found applicant had control over working hours and annual leave – Found sufficient evidence to indicate applicant in business on own account – No jurisdiction – RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – Respondent claimed grievance raised outside 90 day period - Applicant claimed exceptional circumstances justified delay as did not have EA explaining grievance process – Applicant’s duties included explaining EA to respondent’s new employees – Authority found applicant had read respondent’s EA template, aware of requirement to bring grievance within 90 days and sought legal advice – Found no grounds for granting leave to raise grievance outside 90 days – Leave to raise grievance out of time declined - Web Designer/Developer |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6;ERA s6(3)(b);ERA s103(1)(b);ERA s114;ERA s114(1);ERA s114(4);ERA s114(4)(a);ERA s115(c) |
| Cases Cited | Bryson v Three Foot Six Ltd (No 2) [2005] ERNZ 372 ; [2005] 3 NZLR 721;RTS Flexible Systems v Muller [2010] UKSC 14;Singh v Eric James & Associates Ltd [2010] NZEMPC 1 |
| Number of Pages | 17 |
| PDF File Link: | 2012_NZERA_Auckland_33.pdf [pdf 81 KB] |