| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 357 |
| Determination date | 29 August 2014 |
| Member | E Robinson |
| Representation | M Ryan ; R Cabraal, J Mills |
| Parties | McAtanney-Clark v Johnson & Johnson (New Zealand) Ltd |
| Summary | JURISDICTION - Whether applicant employee or independent contractor - Applicant director and shareholder of companies providing IT services - Whether tripartite relationship existed |
| Abstract | AUTHORITY FOUND -;JURISDICTION: No employment agreement between applicant and respondent or any other member of group of companies including respondent. Service agreements sophisticated legal agreements that indicated relationship between applicant's companies and other contracting parties intended to be one of independent contractor and client. Respondent not contracting party to any service agreement. No evidence to support tripartite relationship or direct contractual link between parties such as to identify respondent as applicant's employer. Practice in IT industry for services to be provided by sub-contractor highly relevant factor. Provision of office space for applicant's companies, provision of photo ID card to applicant, and use of respondent's e-mail server by staff of applicant's companies did not indicate parties in employment relationship. Request to attend meetings initiated by applicant's companies and no obligation for applicant to attend meetings personally. No evidence applicant applied for or provided with annual leave and applicant not required to provide services personally. Applicant not subject to respondent's control in provision of services and position not integral to respondent's operation. Applicant able to perform IT services for others. Applicant not paid by respondent. Applicant in business on own account. Significant that neither party raised possibility of employment relationship. Applicant independent contractor. No jurisdiction. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6 |
| 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;McDonald v Ontrack Infrastructure Ltd [2010] ERNZ 223;Singh v Eric James & Associates Ltd [2010] NZEmpC 1 |
| Number of Pages | 20 |
| PDF File Link: | 2014_NZERA_Auckland_357.pdf [pdf 304 KB] |