| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 127/08 |
| Hearing date | 27 Feb 2008 : 28 Feb 2008 (2 days) |
| Determination date | 26 August 2008 |
| Member | P Montgomery |
| Representation | J Goldstein ; P Shamy |
| Location | Christchurch |
| Parties | Taylor v Trends Realty Ltd |
| Summary | JURISIDICTION – Whether employee or independent contractor – Respondent’s owner (“P”) investigated new business model involving incorporation of new company to manage all respondent’s business interests – P interested in involving applicant in new company and proposed equity situation where P or trust would hold 75 percent of shares and applicant to hold balance – Situation compounded by P holding 50 percent of another real estate franchise and hence agreement of applicant as shareholder critical to plan – Applicant claimed became employee in management role for respondent – Respondent argued applicant offered 25 percent equity in new company and not respondent – Authority noted unclear how applicant appeared unable to distinguish prospect of employment with company yet to be formed from arrangement with respondent clearly establishing applicant as independent contractor – Authority found appeared applicant had considerable autonomy and P exercised virtually no control over applicant – Found behaviour redolent of intended partnership rather than employment relationship – Authority found applicant performing tasks not related to day-to-day operations of respondent but company proposed to be established – Found no written documentation supporting applicant’s claim employed by respondent – Authority found clear in course of discussions and consultations envisaged both applicant and P would draw salaries from company once set up – However, harsh reality was P decided not to proceed with new company of which applicant advised – Authority assessed overall position of applicant as businessman engaged in preliminary research and planning and would have had 25 percent equity in project if had proceeded to incorporation – Authority found applicant not employed by respondent for relevant period but rather engaged in planning tasks for possible new company – No unjustified dismissal – Chief Operations Officer |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6(1);ERA s6(2);ERA s6(3) |
| Cases Cited | Bryson v Three Foot Six Ltd (No 2) [2005] ERNZ 372;Bryson v Three Foot Six Ltd [2003] 1 ERNZ 581;Koia v Carlyon Holdings Ltd [2001] ERNZ 585;Curlew v Harvey Norman Stores (NZ) Pty Ltd [2002] 1 ERNZ 114;Stephen Clark v Northland Hunt Inc unreported, Perkins J, AC 66/06 |
| Number of Pages | 9 |
| PDF File Link: | ca 127_08.pdf [pdf 42 KB] |