| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 34/09 |
| Hearing date | 2 Dec 2008 |
| Determination date | 23 March 2009 |
| Member | P R Stapp |
| Representation | A Tayler, G Tayler ; A McEwan |
| Location | Napier |
| Parties | Philpott v London Ltd t/a Ladybirds for Gifts and Anor |
| Other Parties | Greenwood |
| Summary | JURISDICTION – Whether applicant employee or business partner – Applicant claimed was employee and entitled to arrears of wages and holiday pay for unjustified dismissal – Respondent claimed applicant business partner at all material times – Parties formed personal relationship and jointly purchased respondent business – Parties registered as directors and shareholders –Applicant assisted in obtaining finance – Applicant advised respondent needed to present evidence of income as employee to get finance – Respondent claimed offer of employment (“EO”) and employment agreement (“EA”) prepared solely for finance purposes - Applicant claimed EO and EA showed intention applicant be employee – During relationship, applicant attended to business – When relationship ended, respondent locked applicant out of business premises and sent letter advising applicant to cease working – Applicant claimed letter dismissal letter - Authority found applicant business partner – Found purported EO and EA more likely related to financing arrangements than employment – No wage or time records kept, EA left blank and respondent’s accountants not instructed on employment arrangements - Found applicant never performed paid employment duties for respondent – Applicant’s evidence that despite EA providing applicant be paid for typing building reports no intention of employment existed preferred - Found applicant chose hours of work, had joint access to business account, made personal drawings from account and used stock for personal purposes – Found respondent exercised greater control over business however applicant had 50 percent interest as shareholder – Found respondent’s final letter not proof of dismissal but more likely decision to completely take over business by respondent as director – No jurisdiction |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6 |
| Cases Cited | Bryson v Three Foot Six Ltd [2003] 1 ERNZ 581;Smith v Practical Plastics Ltd [1998] 1 ERNZ 341;Secretary of State for Trade and Industry v Bottrill [1999] ICR 59 (CA) |
| Number of Pages | 11 |
| PDF File Link: | wa 34_09.pdf [pdf 43 KB] |