| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 99 |
| Hearing date | 16 Apr 2013 |
| Determination date | 06 August 2013 |
| Member | T MacKinnon |
| Representation | G Davenport ; A Schirnack |
| Parties | Kalicheti v Armourguard Security Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – Applicant signed contract for services through company (“Target”) – Applicant sole director and shareholder of Target – Contract explicit relationship one of independent contractor – Contract provided for resolution of disputes through arbitration – Applicant repeatedly referred to as contractor – Applicant paid own tax and registered for tax – Applicant wore respondent’s livery |
| Abstract | AUTHORITY FOUND –;JURISDICTION: Mutual intention was for applicant to be independent contractor. Contract unambiguous. Intention test suggested applicant independent contractor. Respondent’s control over applicant necessary due to highly regulated nature of road transport and security services industries. Control test not determinative. Applicant integrated into respondent’s business and engaged in Target. Integration test not helpful. Applicant provided employees to fulfil contract. Applicant responsible for hiring and paying employees. Applicant responsible for cost of security guard and goods service licences. Vehicle and equipment owned by applicant’s company. Fundamental test suggested applicant independent contractor. Applicant independent contractor. No jurisdiction. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA;ERA s6;ERA s6(2);ERA s6(3);Private Investigators and Security Guards Act 1974;Transport Services Licensing Act 1989 |
| Cases Cited | Bryson v Three Foot Six Ltd (No 2) [2005] ERNZ 372 ; [2005] 3 NZLR 721;Cunningham v TNT Express Worldwide (New Zealand) Ltd [1993] 1 ERNZ 695 ; [1993] 3 NZLR 681;May v Armourguard Security Ltd [2011] NZERA Auckland 208;Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 |
| Number of Pages | 12 |
| PDF File Link: | 2013_NZERA_Wellington_99.pdf [pdf 194 KB] |