| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 68/08 |
| Determination date | 29 February 2008 |
| Member | J Wilson |
| Representation | T Savage ; J Trotman |
| Location | Auckland |
| Parties | Sage v N.Z. Underwater Assn Inc |
| Summary | JURISDICTION – Whether employee or independent contractor – Applicant claimed compensation for unjustified constructive dismissal, unpaid annual holiday pay and other outstanding monies – Respondent alleged applicant independent contractor – Parties agreed to determine employment status as preliminary issue - Individual Employment Agreement (“IEA”) contained some terms consistent with employment agreement and some consistent with contract for services – Applicant submitted invoices to respondent through Dive Tours New Zealand Ltd (“DTL”) – Applicant sole shareholder and director of DTL – Paid own GST – Argued IEA and nature of position supported claim applicant was employee - Claimed respondent’s president acknowledged him as employee – Claimed respondent controlled hours of work and he could not personally make profit or loss - Conflicting evidence on whether respondent supplied some equipment to applicant to carry out duties – Respondent argued payment of GST not determinative of employment status – Also claimed IEA evinced parties’ intentions were that applicant contractor - Respondent claimed applicant worked part time flexible hours – Monthly amount paid to applicant varied - Respondent’s financial statements separated applicant’s invoices from other wages - Authority found IEA contradictory therefore hard to place weight on it - Hours not controlled by respondent – Applicant not integral part of respondent’s business – On balance Authority found in business on his own account – Applicant sole shareholder and director of limited liability company – Services sold to respondent through applicant’s company – Independent contractor not employee |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6 |
| Cases Cited | Bryson v Three Foot Six [2003] 1 ERNZ 581;McGreal v Television New Zealand Limited, unreported Perkins J, 5 February 2007, AC3/07 |
| Number of Pages | 8 |
| PDF File Link: | aa 68_08.pdf [pdf 37 KB] |