| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 152/08 |
| Hearing date | 9 Oct 2008 |
| Determination date | 12 November 2008 |
| Member | G J Wood |
| Representation | M Smith ; M Gould |
| Location | Wellington |
| Parties | Tsoupakis v Fendalton Construction Ltd |
| Summary | JURISDICTION - Whether employee or independent contractor - Applicant previously worked for respondent as independent contractor before left to become employee at another company - Applicant claimed agreed would recommence with respondent as employee and when raised concerns about not being treated as employee was dismissed - Respondent claimed applicant contractor and terminated when insufficient work - Authority found way contract operated suggested intention of parties for applicant to be contractor - Found contract operated in same way as when applicant first engaged with respondent - Applicant invoiced respondent, responsible for own taxation, paid own ACC and not provided with annual or sick leave - Found applicant not supplied with written employment agreement as all employees were - Found no employee with equivalent qualifications and experience paid as much as applicant - Found unlikely applicant would have allowed misunderstanding over employment status to have run for so long without direct challenge - Found control test indicated applicant more likely contractor than employee as applicant able to take on other work if chose - Found applicant not integrated from revenue and administration perspective - However, found applicant treated same as other employees and contractors so operation of contract neutral in relation to whether applicant employee or contractor - Found under fundamental test would not conclude applicant any more in business on own account than employee - Applicant subject to respondent’s direction and supervision to same extent as employee - Found on balance of probabilities, real nature of relationship contractor and principal - No jurisdiction to determine grievance - Painter |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Cases Cited | Bryson v Three Foot Six Ltd and Ors [2005] 1 ERNZ 372;Koia v Carlyon Holdings Ltd [2001] ERNZ 585;NZ Carpenters etc IUOW v Construction Development Ltd [1989] 1 NZILR 323 |
| Number of Pages | 7 |
| PDF File Link: | wa 152_08.pdf [pdf 28 KB] |