| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 212 |
| Hearing date | 17 Jul 2012 |
| Determination date | 27 September 2012 |
| Member | H Doyle |
| Representation | A Burton (in person) ; D Hudson |
| Location | Alexandra |
| Parties | Burton v Best Removals Otago Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – Authority found parties agreed at outset relationship not of employment and common intention applicant not employee did not change over course of relationship – Found applicant in business on own account as submitted GST invoices in name of applicant’s company, able to claim vehicle expenses if wished and not clearly restricted in ability to undertake other work – Found while applicant’s administrative work could have been carried out by employee, respondent’s specific control over applicant such as hours of work and detail of work undertaken more limited than employment relationship – Found limited control over applicant when undertaking sales activities – Found fact that applicant able to take leave without obtaining consent did not support finding applicant subject to control of employee or integrated into respondent’s business – Found on balance control and integration tests favoured contractor relationship – Found applicant independent contractor – No jurisdiction – Administration / sales manager |
| Abstract | Applicant engaged by respondent as administration / sales manager. Applicant sought arrears of wages and recovery of costs in respect of proceedings in Disputes Tribunal and Authority. Respondent claimed applicant independent contractor. Respondent saw advertisement offering applicant’s expertise and parties reached oral agreement. Applicant provided with business card to leave with clients and advertisement placed in newspaper referring to respondent and applicant by name. Advertisement ran for three years but respondent claimed unaware advertisement placed. Applicant claimed nature of work changed subsequently to office clerk and applicant worked regular hours. Respondent claimed applicant provided administrative cover but continued with sales duties. Applicant used respondent’s van at outset but shifted to using own vehicle and did not claim travel expenses. Applicant not required to obtain respondent’s approval when taking leave and applicant not paid holiday pay. Respondent claimed told applicant no work available after applicant away for twelve weeks for surgery. Applicant returned to work but three weeks later respondent queried applicant’s invoices and stated had no need of applicant’s services as consultant. Respondent terminated agreement with applicant.;AUTHORITY FOUND –;JURISDICTION: Applicant owned own company, had not been in employment relationship for almost twenty years, had been contacted by respondent because respondent wanted to use applicant’s skills and initial discussion between parties not situation of unequal bargaining power. During initial discussion applicant referred to applicant’s company as entity registered for GST. Parties agreed at outset relationship not of employment and common intention applicant not employee did not change over course of relationship. Applicant in business on own account as submitted GST invoices in name of applicant’s company, able to claim vehicle expenses if wished and not clearly restricted in ability to undertake other work. While applicant’s administrative work could have been carried out by employee, respondent’s specific control over applicant such as hours of work and detail of work undertaken more limited than employment relationship. Limited control over applicant when undertaking sales activities. Fact that applicant able to take leave without obtaining consent did not support finding applicant subject to control of employee or integrated into respondent’s business as opposed to being accessory to it. Applicant’s business card not determinative as something needed to be left with clients giving respondent advantage from contact and respondent not aware of continued publication of advertisement. On balance control and integration tests favoured contractor relationship. Applicant independent contractor. No jurisdiction. |
| Result | Application dismissed; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6 |
| Cases Cited | Bryson v Three Foot Six Ltd (No 2) [2005] ERNZ 372; [2005] 3 NZLR 721;Chief of Defence Force v Ross-Taylor [2010] ERNZ 61;Singh v Eric James & Associates Ltd [2010] NZEmpC 1 |
| Number of Pages | 11 |
| PDF File Link: | 2012_NZERA_Christchurch_212.pdf [pdf 191 KB] |