| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 150/08 |
| Hearing date | 18 Sep 2008 - 2 Oct 2008 (2 days) |
| Determination date | 11 November 2008 |
| Member | G J Wood |
| Representation | T Cleary ; D Burton |
| Location | Wellington |
| Parties | King v Creative Energy Wholesale Ltd |
| Summary | JURISDICTION – Whether applicant employee or contractor – Applicant managing director and significant shareholder of two companies which had commercial contracts with respondent – Applicant, through partnership, entered independent contract for services to provide respondent with promotional services – Partnership employed part-time office assistant – Parties agreed applicant was contractor when commenced relationship with respondent – Applicant provided invoices for self and office assistant plus GST, and only worked 20 hours per week for respondent, with rest of time spent on own companies - Office assistant became full-time employee of respondent – Applicant claimed director and shareholder (“S”) of respondent agreed to applicant also becoming full-time employee – Respondent argued applicant continued on contract for services, albeit full-time – Respondent sold business - Applicant raised disadvantage grievance then went on stress leave – Respondent terminated agreement - Authority found lack of evidence as S deceased, and witness’ evidence often self-serving – Found respondent entered written employment agreement with office assistant but not applicant – Found applicant’s partnership invoiced respondent, not applicant personally – Found applicant claimed expenses from respondent that employees not able to claim - Found applicant had business acumen; not ignorant of matters – Found parties’ intentions that relationship to continue as principal and contractor – Authority found applicant had control as senior manager but could not make significant decisions beyond sphere of responsibility without approval of S – Found applicant closely integrated into respondent’s operations – Applicant worked onsite with direct staff reports, company car and cellphone - Found control test and integration test favoured employment relationship finding – However, economic reality that applicant intended to be in business on own account – Found applicant indirectly benefitted from increased sales with respondent due to connection to own business – Found not appropriate case to lift corporate veil – Found applicant invoiced respondent through partnership – Found partnership not sham entity – Found integration and control outweighed by parties’ intentions and economic reality - Found real nature of relationship not employment – No jurisdiction - National Sales Manager |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Cases Cited | Bryson v Three Foot Six (No 2) [2005] ERNZ 372;Davis v CanWest Radio Works Ltd unreported, Travis J, 4 May 2007, AC 21/07;Koia v Carlyon Holdings Ltd [2001] ERNZ 585 |
| Number of Pages | 9 |
| PDF File Link: | wa 150_08.pdf [pdf 42 KB] |