| Summary |
JURISDICTION – Whether employee or independent contractor – Applicant claimed unjustifiably dismissed – Respondent argued that applicant courier driver so not employee and barred from bringing grievance – Memorandum of agreement (“MOA”) described relationship as contract for services – Applicant provided own vehicle, vehicle security system and radio telephone – Applicant paid for own operating costs and maintenance of equipment, uniform, taxation, GST and ACC levies, insurance and licences and registration costs – Applicant claimed agreement and structure of relationship was in effect a sham – Applicant argued required to report to respondent at particular times four times a day, hours strictly prescribed by respondent, respondent effectively prepared applicant’s invoices and was unable to perform services for anyone else due to number of hours required to work for respondent – Applicant also argued worked in confined geographical area which respondent could change at will, and respondent imposed strict restraint of trade – Authority found description of relationship consistent with industry practice – Found factual matrix similar to Cunningham - Found applicant sought finding Cunningham not good law since enactment of s6 Employment Relations Act 2000 – Authority did not conclude on matter, instead finding would apply principles in Bryson – Found intention of parties was contractual rather than employment relationship, as ascertained from MOA and surrounding circumstances – Authority found even if applicant did not understand difference between employment and contracting at time MOA signed, would have become clear when set up company – Found intention of parties relevant but not decisive – Found applicant’s van signwritten and applicant wore uniform – Authority preferred respondent’s evidence that applicant able to perform other duties for other clients – Found applicant owned own van and equipment – Found income determined by own efforts and organisation, not by hours worked, despite applicant’s guaranteed minimum weekly payment – Found applicant required to provide relief driver and vehicle where necessary, evincing business risk with applicant - Found applicant was person performing business services on own account – Found respondent had control over applicant in requiring uniform and signwritten van, and attend depot four times a day – Found respondent prepared draft invoices as had larger infrastructure to manage administration – Found applicant intimately integrated into respondent’s business activities – Found despite high element of control and integration, applicant created own business and income fluctuated – Found applicant had benefits of self employment for tax purposes – Found applicant’s confined working area no different to franchise model - Found on balance of probabilities, real nature of relationship contractor and principal – No jurisdiction to determine grievance |