| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 115 |
| Hearing date | 2 Mar 2012 |
| Determination date | 02 April 2012 |
| Member | R Larmer |
| Representation | D Schrijvers (in person) ; S Bonner (in person) |
| Location | Tauranga |
| Parties | Schrijvers v Stephanie Bonner t/a Woman Hair Salon |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Applicant raised numerous employment relationship problems against respondent – Respondent claimed Authority had no jurisdiction to hear claims as applicant not employee – Parties did not discuss applicant’s employment status when entered into employment arrangement – Authority found no common intention between parties regarding status of relationship – Found more likely than not respondent did not provide applicant with alleged remittance advice which was indicative of independent contractor arrangement – Found wage receipts reinforced applicant’s belief that working as employee – Found evidence of way parties operated arrangement in practice unclear – Parties agreed applicant’s actual hours and days of work would fluctuate as per business needs – Found parties reached agreement regarding minimum hours – Found applicant could not turn down work – Found fact applicant received commission payments not indicative of independent contractor relationship – Found insufficient evidence to establish applicant running separate business on own account – Found applicant would have arranged financial affairs differently if had known was being taxed as independent contractor – Parties agreed to address applicant’s employment status but disagreed on status quo – Found limited evidence about applicant attending to personal matters during work hours did not indicate applicant was independent contractor – Found applicant’s use of own tools not decisive factor – Found applicant’s failure to claim minimum Holidays Act 2003 entitlements tipped balance in favour of applicant being independent contractor but not decisive as applicant unaware of entitlements – Found applicant did not mark appointment book as unavailable at own convenience – Found applicant provided with business cards to hand out to potential clients which indicated applicant was employee – Found fact respondent did not require applicant at work week after Christmas was factor in favour of independent contractor relationship – Found applicant could not come and go from work as pleased – Found control test favoured applicant being employee as respondent held most control and set days applicant would work – Found applicant performing role that was integral part of respondent – Found applicant did not perform services for respondent as person in business on own account – Found balance lied in favour of real nature of relationship being one of employer and employee – Found had jurisdiction to investigate applicant’s claims as parties were in employment relationship – Hairdresser |
| Result | Application granted ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s6;ERA s6(1);ERA s6(2);ERA s6(3);Holidays Act 2003 |
| Cases Cited | Bryson v Three Foot Six Ltd [2005] ERNZ 372 |
| Number of Pages | 17 |
| PDF File Link: | 2012_NZERA_Auckland_115.pdf [pdf 71 KB] |