| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 275/07 |
| Hearing date | 31 May 2007 |
| Determination date | 07 September 2007 |
| Member | Y S Oldfield |
| Representation | D Bolton (in person) ; B Beck |
| Location | Auckland |
| Parties | Bolton v The Rathbone Clinic Ltd |
| Summary | JURISDICTION – Whether employee or independent contractor – Applicant engaged as locum osteopath by respondent – Applicant divided time between respondent and another osteopathy clinic – Parties discussed entering permanent written agreement – Authority found applicant not shown draft agreement – Applicant not given same induction as other employees – Applicant gave 5 weeks notice of intention to leave to develop own practice in competition with respondent – Applicant told to leave immediately – Applicant sought declaration was employee, compensation, lost wages, and other remedies – Respondent alleged applicant self-employed contractor - Authority only heard jurisdiction issue - No written agreement – Respondent engaged other osteopaths as contractors – Nationwide industry practice for osteopaths to be self-employed – Applicant received professional supervision from respondent’s director – Applicant built up client base but patients still those of clinic – Respondent did not deduct tax from applicant’s earnings – Applicant registered for tax through other clinic - Applicant paid own professional registration, indemnity insurance and first aid certificate – Applicant provided own diagnostic equipment – Respondent provided rooms, fittings and administrative support – Applicant used respondent’s locum number for ACC purposes – Applicant not paid holiday or sick pay - Control and integration tests not decisive – Respondent paid applicant percentage of fees he generated – Losses shared between applicant and respondent in case of client default – Applicant in business for himself in limited way because received commission and could establish own client base – Applicant self-employed sub-contractor - No jurisdiction - Osteopath |
| Result | Application dismissed ; No order for costs |
| Main Category | Jurisdiction |
| Statutes | ERA s6 |
| Number of Pages | 7 |
| PDF File Link: | aa 275_07.pdf [pdf 27 KB] |