| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 100/06 |
| Hearing date | 27 Apr 2006 |
| Determination date | 05 July 2006 |
| Member | P R Stapp |
| Representation | D Patten ; A Bell |
| Location | Wellington |
| Parties | Gyles v Thumbprint 2 Ltd |
| Summary | JURISDICTION - Whether employee or independent contractor - Applicant wrote letter setting out terms and conditions - Labelled relationship as independent contractor - Paid own taxes - Invoiced respondent through own company - Owned and operated own vehicle - Applicant required to act as manager and run company with extensive range of duties and responsibilities - More than work required of consultant - Although not determinative, applicant kept own holiday and leave record consistent with his position and authority - Integration and control - Integrated into respondent's business in role and responsibilities - Measure of control over applicant's activities - Reported to company director - Worked at agreed times solely for respondent on its premises - Relied on respondent's computer and telephone - Introduced to employees as general manager - Promotional and other documents consistent with working in capacity of employee - Agreed not to work for other organisations nor seek other work - Despite the label given to the relationship by the parties, real nature of relationship was one of employment when all relevant matters taken into account - Label enabled applicant to maximise earnings - Employee - UNJUSTIFIED DISMISSAL - Applicant dismissed by company director in letter - No notice or opportunity to comment - No contributory conduct - Dismissal unjustified - Remedies - Authority exercised discretion not to award more than three months lost wages - Fact that agreement had minimum 12 month period and was renewable did not make it fixed term - Applicant exploited inexperience of company director and took advantage of situation to bring the claim - Compensation claim not established despite evidence that mitigated losses - Length of service three months two weeks - General manager |
| Result | Application granted ; Reimbursement of lost wages ($17,500)(3 months) ; Costs reserved |
| Statutes | ERA s6 |
| Number of Pages | 9 |
| PDF File Link: | wa 100_06.pdf [pdf 40 KB] |