| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 312 |
| Hearing date | 16 Jul 2014 |
| Determination date | 17 July 2014 |
| Member | R Larmer |
| Representation | M Smyth ; M Greenstein (in person) |
| Location | Auckland |
| Parties | Zeald New Zealand Ltd v Greenstein |
| Summary | JURISDICTION - Applicant sought declaration on whether respondent employee or independent contractor - Whether nature of relationship changed - Applicant sought recovery of initial payments made to respondent - Sales consultant |
| Abstract | AUTHORITY FOUND -;JURISDICTION: Respondent required to purchase own equipment and licensed to use applicant's intellectual property. Respondent had control over hours and location of work, and no obligation to accept customer leads provided by applicant. Respondent not guaranteed regular wage or salary payments and not entitled to holiday pay. No problem resolution clause in agreement. Agreement clear that parties intended to enter into commercial independent contracting relationship. Respondent acknowledged that real nature of relationship was independent contracting relationship and parties agreed mutual intention was to enter independent contracting relationship. Respondent responsible for complying with applicable tax laws and other statutory obligations. Invoicing and commission arrangements suggested parties in independent contracting relationship. Way relationship operated in practice indicative of independent contracting arrangement. Fact respondent provided with training on applicant's products and advice on how to maximise sales did not mean applicant exercising sort of control over respondent indicative of employment relationship. Applicant did not control respondent to extent necessary to alter nature of relationship. Apart from initial set up business cards and some preliminary marketing material, respondent expected to purchase marketing material from applicant. Respondent not integrated into applicant's business. Agreement clear that respondent in business on own account and took risks and benefits of self-employment insofar as respondent able to benefit or profit from own endeavours. Respondent independent contractor. No jurisdiction. |
| Result | Application granted ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA;ERA s6;ERA s6(2);ERA s6(3);ERA s6(3)(b);Holidays Act 2003 |
| Cases Cited | Bryson v Three Foot Six Ltd (No 2) [2005] ERNZ 372 ; [2005] 3 NZLR 721;Chief of Defence Force v Ross-Taylor [2010] ERNZ 61 |
| Number of Pages | 13 |
| PDF File Link: | 2014_NZERA_Auckland_312.pdf [pdf 181 KB] |