| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 413 |
| Hearing date | 24 Oct 2012 |
| Determination date | 20 November 2012 |
| Member | T MacKinnon |
| Representation | A Dudley ; A Singh |
| Location | Auckland |
| Parties | Dudley v Super Finance Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – Authority found applicant accepted engagement as contractor and parties had common intention regarding nature of relationship – Found control test inconclusive but more supportive of contractor relationship - Found integration test supported contractor relationship – Found difficult to assess whether applicant in business on own account due to short duration of engagement but more likely applicant in business on own account rather than employee – Applicant independent contractor – No jurisdiction - Sales Consultant |
| Abstract | Applicant employed as sales consultant. Applicant claimed unjustifiably dismissed by respondent. Respondent claimed applicant independent contractor and claimed others performing same role as applicant engaged as contractors, not employees. Parties agreed would be no payment to applicant during training period. Parties disputed applicant’s starting time, whether was trial period and details of retainer. Applicant accepted had been told by respondent position was independent contractor position but believed not contractor arrangement as had not been given contract. Applicant accepted told by respondent would have to pay taxes, had to pay own mobile and vehicle expenses and likely was told needed to invoice respondent to receive payment. Applicant claimed arranged appointment with customers to discuss respondent’s products but humiliated when discovered discrepancies between flyer customers received and respondent’s price list and appointment unsuccessful. Applicant claimed not told by respondent needed to report back after each appointment with potential customer. Applicant claimed further incidents where embarrassed by discrepancies between respondent’s flyers and price list. Respondent contacted applicant after discovered applicant had not made contact after customer appointments. Respondent requested applicant attend meeting. Applicant claimed dismissed after meeting. Respondent claimed applicant did not want to discuss matters but was happy to give applicant opportunity to improve. Applicant returned company property after meeting and paid in accordance with retainer.;AUTHORITY FOUND –;JURISDICTION: Applicant told by respondent to contact respondent after appointment with potential customer. Applicant did not challenge nature of engagement at interview or when accepted position. If applicant believed engaged as employee not as contractor, good faith obligation required applicant be open and communicative with respondent. Applicant accepted engagement as contractor and parties had common intention regarding nature of relationship. Respondent exercised minimal control over how applicant conducted work on daily basis. Control test inconclusive but more supportive of contractor relationship. Applicant provided most of own tools and required to pay vehicle and phone expenses. Integration test supported contractor relationship. Difficult to assess whether applicant in business on own account due to short duration of engagement but more likely applicant in business on own account rather than employee. Applicant able to increase potential earnings and paid by commission only once sales exceeded retainer. Application independent contractor. No jurisdiction. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6(2);ERA s6(3 |
| Cases Cited | Bryson v Three Foot Six Ltd [2005] ERNZ 372 ; [2005] 3 NZLR 721 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Auckland_413.pdf [pdf 171 KB] |