| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 334 |
| Hearing date | 12 Sep 2012 |
| Determination date | 25 September 2012 |
| Member | J Crichton |
| Representation | S Barter ; C Blake |
| Location | Auckland |
| Parties | Catley v Altair Business Solutions Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – Authority found parties at one on intention relationship to be contractual – Found applicant had complete freedom with respect to hours and location of work and respondent entitled to monitor applicant’s performance to ensure getting value for money – Found applicant integrated into respondent’s business through e-mail address but difficult to operate on different basis in IT industry – Found provision of equipment to applicant reflected nature of particular industry rather than evidence of integration into respondent’s business – Found unlike respondent’s employees applicant did not file timesheets and not required to account in detailed way for applicant’s time – Found plain applicant providing services on own account – Found applicant independent contractor – No jurisdiction – Business development manager |
| Abstract | Applicant engaged by respondent as business development manager. Applicant claimed unjustifiably dismissed by respondent and sought arrears of wages. Respondent claimed applicant independent contractor. Parties entered discussions for applicant to be employed as business development manager. Applicant proposed contractor relationship and respondent agreed. Applicant invoiced respondent on behalf of applicant’s company but claimed applicant employee in reality. No provision in parties’ agreement for payment of holidays and applicant not required to obtain respondent’s consent when chose not to provide services. Equipment used by applicant supplied by respondent and applicant had e-mail address with respondent. Applicant able to work for other entities and did so. Applicant claimed required to work 40 hour week for respondent. Applicant claimed required to be at respondent’s office while working, told what to do by respondent and when to do it and required to take a colleague to sales meetings.;AUTHORITY FOUND –;JURISDICTION: Initiative for contractor relationship came from applicant and parties at one on intention relationship to be contractual. Parties experienced commercial people with access to legal advice and no obvious power imbalance. No evidence parties entered into sham contractor arrangement but actually intended relationship of employment. Applicant not required to attend respondent’s office while working and applicant frequently not at office. Applicant not required to work 40 hour week for respondent. Applicant had complete freedom with respect to hours and location of work and respondent entitled to monitor applicant’s performance to ensure getting value for money. Applicant integrated into respondent’s business through e-mail address but difficult to operate on different basis in IT industry. Provision of equipment to applicant reflected nature of particular industry rather than evidence of integration into respondent’s business. Unlike respondent’s employees applicant did not file timesheets and not required to account in detailed way for applicant’s time. Plain applicant providing services on own account. Applicant never raised suggestion during relationship that relationship other than that of contractor. Applicant independent contractor. No jurisdiction. |
| Result | Application dismissed; Costs reserved |
| Main Category | Jurisdiction |
| Cases Cited | Bryson v Three Foot Six Ltd [2003] ERNZ 581;Chief of Defence Force v Ross-Taylor [2010] ERNZ 61;Massey v Crown Life Insurance Co [1978] 1 WLR 676 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Auckland_334.pdf [pdf 167 KB] |