| Summary |
JURISDICTION - Whether employee or independent contractor - Applicant Italian national and Swiss-qualified architect not qualified to practice in New Zealand (”NZ”) - Respondent claimed relationship contract for services and signed employment agreement never intended to be operative - Respondent sole trustee and beneficiary of private trust that owned architecture business (“DI”) - Parties initially signed agreement purporting to be contract for services - Applicant’s work permit application rejected because job offer as independent contractor regarded as self employment and outside Immigration Service policy - Following rejection of application parties concluded new employment agreement - Applicant granted work permit based on new agreement - Applicant sought to enforce new agreement in Authority - Authority found only indication applicant independent contractor related to tax - Found applicant received GST and complied with GST obligations - Found in every other respect relationship that of employer and employee - Found respondent supervised applicant’s work - Found work done for DI’s clients - Found work principally performed at DI’s business premises using its equipment and resources - Authority found overall applicant working in and for DI’s business and not operating own business - Found in absence of written agreement applicant would clearly be classified as employee - ARREARS OF WAGES - Applicant claimed owed arrears of wages of $59,610.17 - Authority calculated applicant should have been paid $114,269.25 over course of employment - Found applicant actually paid $52,889.83 - Authority found balance owing of $61,379.42 - Authority satisfied applicant owed at least amount claimed - Respondent to pay applicant $59,610.17 arrears of wages - Interest awarded - RECOVERY OF MONIES - Counterclaim - Respondent made four separate counterclaims totalling $48,600 based on losses claimed caused by applicant’s failure to perform work properly - Authority found if assumed applicant at fault as claimed, any losses not recoverable against him - Authority found applicant’s work always supervised and signed off by respondent because applicant could not practice as architect in NZ - Respondent also claimed $8,800 for food and accommodation provided to applicant - Authority found food and accommodation gifted to applicant - Counterclaims dismissed - COSTS - Successful arrears of wages claim - Less than half day investigation meeting - Costs award of $1,500 in favour of applicant appropriate - Draughtsman |