| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 143 |
| Hearing date | 20-31 Aug 2013 |
| Determination date | 11 November 2013 |
| Member | T MacKinnon |
| Representation | M Richard, A James ; M Gould |
| Location | Wellington |
| Parties | Wyber v Midas Infomedia Ltd and Anor |
| Other Parties | Sandhu |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – Whether applicant became employee after three month review – Respondent not registered for PAYE until employees transferred to respondent from different company – Whether applicant asked if wanted to become employee or director of respondent – Applicant held shareholding in respondent – Applicant and other party attempted to buy out respondent’s majority shareholder (“S”) – Whether applicant told colleague (“W”) was independent contractor – Whether applicant introduced to clients as employee – Head of operations |
| Abstract | AUTHORITY FOUND –;JURISDICTION: No documented record of arrangement between parties. Parties assumed or accepted applicant independent contractor when applicant commenced work on particular project. Applicant did not ask for employment agreement. Employees exception rather than norm at respondent. Respondent’s co-director aware of employer’s obligations in relation to employment agreements and PAYE and would have raised obligations if understood applicant became employee. No intention between parties that applicant’s status would change from independent contractor. Applicant may have spent considerable time in respondent’s offices but not required to do so or request leave for absences. Completion of work within agreed timeframes and checking for quality unremarkable regardless of status of person performing work. Application of control test mixed but indicated overall that applicant independent contractor. Fact applicant asked W to join respondent did not indicate applicant’s ability to replace self with contractor. Applicant able to take on other contracting work. Applicant became more integrated into respondent and respondent viewed applicant as integral to respondent’s development. Applicant invoiced respondent through applicant’s company, submitted GST return and did not request change to tax arrangements. Applicant enjoyed tax benefits of contracting relationship, regarded respondent as business opportunity and sought to increase influence within respondent by buying out S. No standard practice in IT industry. Applicant independent contractor. No jurisdiction. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA;ERA s6;Holidays Act 2003 |
| Cases Cited | Bryson v Three Foot Six Ltd (No 2) [2005] ERNZ 372 ; [2005] 3 NZLR 721;Clark v Northland Hunt Inc (2006) 4 NZELR 23;Excell Corp Ltd v Carmichael [2003] 1 ERNZ 473;Massey v Crown Life Insurance Co [1978] 1 WLR 676 |
| Number of Pages | 16 |
| PDF File Link: | 2013_NZERA_Wellington_143.pdf [pdf 258 KB] |