| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 229 |
| Hearing date | 2 Aug 2013 |
| Determination date | 08 November 2013 |
| Member | C Hickey |
| Representation | P Dolheguy (in person) ; R Keenan |
| Location | Christchurch |
| Parties | Dolheguy v Fletcher Distribution Ltd |
| Summary | JURISDICTION – Whether applicant in employment relationship with respondent – Respondent franchisor – Company (“R”) engaged by joint venture franchisee to manage franchise – Applicant engaged by R to manage franchise business – Applicant involved in joint venture – Whether applicant required to implement health and safety policy by respondent – Whether applicant offered franchise opportunity personally and engaged personally through R meaning relationship between parties one of employment – Franchise operator |
| Abstract | AUTHORITY FOUND –;JURISDICTION: No employment agreement or direct contractual relationship between applicant and respondent. Control and integration tests not useful in context of franchise arrangement where significant control exerted over franchisee and some significant integration into franchisor’s business. Nature of contracts entered into strong evidence applicant not employee of respondent or company owned or controlled by respondent. Fact payments to applicant made by R and applicant did not pay PAYE indicated arm’s length business arrangement. Applicant only required to seek approval to take all leave in one block and not paid for annual or sick leave. Common for franchisor to guarantee personal involvement of operator in running of franchise and did not mean franchise operator became employee. Joint venture company not cover for control exercised by respondent but operated with purpose of running joint venture. Applicant’s legal adviser did not consider employment relationship existed. Applicant put money into joint venture and stood to make significantly more money than if employed as manager. Applicant and respondent business partners. No jurisdiction. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA;ERA s5;ERA s6 |
| Cases Cited | Bryson v Three Foot Six Ltd [2003] 1 ERNZ 581;Bryson v Three Foot Six Ltd (No 3) [2005] ERNZ 461;Curlew v Harvey Norman Stores (NZ) Pty Ltd [2002] 1 ERNZ 114 |
| Number of Pages | 11 |
| PDF File Link: | 2013_NZERA_Christchurch_229.pdf [pdf 256 KB] |