| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 162/06 |
| Hearing date | 18 Oct 2006 |
| Determination date | 23 November 2006 |
| Member | H Doyle |
| Representation | M Bell ; W Martyn |
| Location | Christchurch |
| Parties | Cockburn v Aylesford Automotive (2001) Ltd |
| Summary | JURISDICTION - Whether employee or independent contractor - Applicant worked for respondent's previous owner, but not as employee - In September 2001 business sold - Applicant agreed to work full time for new owner and considered himself employee - Respondent claimed applicant told situation would remain same as under previous owner and it intended to engage applicant as contractor - No written agreement - IRD audited respondent's wage and tax records - IRD decided applicant an employee and sent letter to respondent stating PAYE to be deducted - Although respondent denied receiving letter began to deduct PAYE from October 2002 - Control factors weighed in favour of employment relationship - Applicant's role integral part of respondent's business and not accessory to it - Fundamental test more consistent with employment relationship than person in business on own account - No significant industry evidence - Factors indicative of employment relationship clearly outweighed factors indicative of independent contractor from October 2002 - Prior to that date applicant accounted personally for payment of taxes and had not considered true nature of relationship - Employee from October 2002 onwards - Warrant of fitness inspector |
| Result | Question answered in favour of applicant ; Costs reserved |
| Statutes | ERA s6;ERA s6(3)(a) |
| Cases Cited | Bryson v Three Foot Six Ltd [2005] 1 ERNZ 372 ; [2005] 3 NZLR 721 ; [2005] NZSC;34 (SC) |
| Number of Pages | 6 |
| PDF File Link: | ca 162_06.pdf [pdf 46 KB] |