| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 122 |
| Hearing date | 4 Jun 2013 |
| Determination date | 26 June 2013 |
| Member | D Appleton |
| Representation | L Kearns (in person) ; C Smith |
| Parties | Kearns v Southern Institute of Technology |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – Applicant provided invoices to respondent – Applicant registered for GST – Respondent transferred operations to Invercargill – Need for applicant’s services no longer required – Whether applicant homeworker - Marker |
| Abstract | AUTHORITY FOUND –;JURISDICTION: Applicant not engaged to work in dwelling house. Irrelevant where applicant did work. Applicant not homeworker. Contractual documentation identified applicant as contractor. Classic contractor’s agreement. Employment status never questioned by applicant. Parties intended applicant to be contractor. Applicant free to choose when work done. Prohibition on sub-contracting not determinative. Applicant’s duties not on par with fulltime employees. Applicant used own equipment. Refusal to take keys and alarm code indicated applicant contractor. Applicant not closely integrated into business. No financial risk. Applicant able to take other employment. Applicant required to indemnify respondent. Applicant independent contractor. No jurisdiction. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s5 – ERA s6 - ERA s6(1) – ERA s6(2) - ERA s6(3) – ERA s6(3)(a) – ERA s6(3)(b) - ERA s60A – ERA s65(2)(vi) – ERA s66 |
| Cases Cited | Bryson v Three Foot Six Limited [2005] ERNZ 372;Cashman v Central Regional Health Authority [1997] 1 NZLR 7;Chief of Defence Force v Ross-Taylor [2010] NZEmpC 22;Massey v Crown Life Insurance Co [1978] IRLR 31;New Zealand Educational Institute (Inc) v Board of Trustees - Red Beach School unreported, Y Oldfield, 7 Nov 2005, AA437/05;Singh v Eric James & Associates Ltd [2010] NZEmpC 1;Thompson v Tauranga Environmental Centre Charitable Trust [2011] NZERA Auckland 184 |
| Number of Pages | 19 |
| PDF File Link: | 2013_NZERA_Christchurch_122.pdf [pdf 242 KB] |