| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 157 |
| Hearing date | 27 Feb 2012 |
| Determination date | 31 July 2012 |
| Member | M B Loftus |
| Representation | E Heschl, D Dehn ; LLewis, J Molloy (in person) |
| Location | Takaka |
| Parties | Heschl v Lewis & Ors |
| Other Parties | Molloy, Hair Revolution Ltd |
| Summary | JURISDICTION – Whether applicant employee or contractor – Authority found evidence showed applicant chose own hours of work, applicant provided own tools and often charged customers own prices - Found applicant operating other competing business in spare time was behaviour consistent with self-employment – Found applicant contractor, not employee – No jurisdiction - Application dismissed - Senior Hairdresser |
| Abstract | Applicant employed as senior hairdresser. Applicant claimed unjustifiably disadvantaged by respondents’ demeaning manner and actions which made applicant’s employment difficult. Applicant claimed unjustifiably dismissed by respondents and respondents failed to provide written employment agreement (EA"). Respondents denied applicant dismissed as applicant contractor not employee therefore no requirement for written EA. Respondents claimed factors supporting applicant contractor included applicant choosing own hours, setting own prices and invoicing respondent, paying tax and bringing own tools. Applicant claimed parties’ relationship deteriorated after applicant notified respondent of error in GST calculations when respondent paid applicant. Applicant operated own business in spare time. Applicant claimed own business ‘shell’ and not trading. Respondents claimed considered new structure as economic conditions challenging. Respondents sought feedback from applicant before decided applicant no longer required and implemented new structure. Applicant’s relationship terminated.;AUTHORITY FOUND –;JURISDICTION: Applicant often charged customers own prices and was not behaviour of employee. Respondents failed to deduct tax from payments to applicant. Incomprehensible that applicant would challenge GST calculations but not question respondent about tax if thought was employee. Evidence showed applicant chose own hours of work. Applicant provided own tools. Applicant operating other competing business in spare time was behaviour consistent with self-employment. Applicant contractor, not employee. No jurisdiction. Applications dismissed." |
| Result | Application dismissed ; Costs to lie where they fall |
| Main Category | Jurisdiction |
| Statutes | ERA s5 |
| Cases Cited | Court v Loose Ends Ltd [2011] NZERA Christchurch 13 |
| Number of Pages | 8 |
| PDF File Link: | 2012_NZERA_Christchurch_157.pdf [pdf 159 KB] |