| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 182 |
| Hearing date | 28 Mar 2014 |
| Determination date | 16 May 2014 |
| Member | E Robinson |
| Representation | D Vinnicombe ; E Orlov |
| Location | Auckland |
| Parties | Arakelian v DVK Group Ltd |
| Summary | JURISDICTION - Whether applicant employee or independent contractor - Applicant shareholder and director of respondent for 15 years - Applicant ceased directorship but continued to be shareholder - Applicant paid own salary from respondent accounts then later paid directly by debtor of respondent - No employment agreement - Manager |
| Abstract | AUTHORITY FOUND -;JURISDICTION. Respondent exercised some control over applicant and applicant fully integrated into business however not determinative. Applicant not employee for 15 years. No evidence of PAYE contributions and applicant not included on respondent's IRD Employer Monthly Schedules. Applicant would have been aware of requirements due to business experience. Applicant did not work full time and made no claim for holiday pay or sick leave. Action of transferring money to own account not usually open to employee. No income allocated to applicant other than drawings taken out as director and shareholder". Applicant did not raise issues concerning alleged shortfall in salary for 5 months. Applicant decided what customers to visit. No evidence employment terminated rather applicant ceased to provide services for respondent. Applicant independent contractor. No jurisdiction." |
| Result | Application dismissed; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6;Companies Act 1993 s127 |
| Cases Cited | Bryson v Three Foot Six Ltd and Ors [2005] 1 ERNZ 372 ; [2005] 3 NZLR 721;Cunningham v TNT Express Worldwide (New Zealand) Ltd [1993] 1 ERNZ 695 ; [1993] 3 NZLR 681;Muollo v Rotaru [1995] 2 ERNZ 414 |
| Number of Pages | 15 |
| PDF File Link: | 2014_NZERA_Auckland_182.pdf [pdf 224 KB] |