| Summary |
JURISDICTION – Whether employee or independent contractor – Applicant applied for advertised vacant position with respondent – Parties agreed intended to engage successful candidate as employee – Applicant sought higher salary than respondent willing to pay, so parties agreed payment on “GST basis” and payable on monthly invoice – Respondent told applicant mode of payment would make “no difference” to arrangement - No reference in written individual employment agreement (“IEA”) to contracting – Authority found no express discussion or agreement of contractor relationship – IEA provided for salary, allowances, reimbursements, sick leave, annual leave, redundancy and dispute resolution processes – Found except for first month, applicant invoiced respondent monthly through one of applicant’s companies (“VIL”) – VIL was applicant’s previous retail business which no longer traded – VIL’s only source of income was provision of applicant’s services to respondent – Authority found applicant primarily worked at respondent’s workplace – Found little assistance in control test due to combination of industry and applicant’s skills and experience – Found little assistance in integration test – Found no mention of VIL in IEA, and no evidence of parties discussing VIL – Found no basis to infer VIL was contracting party rather than applicant personally – Found respondent had sought to engage employee, not contractor - Found contract expressed to be, and consistent with, an IEA – Found respondent had expressed view to applicant that parties’ salary discussions concerned mode of payment only and did not affect not relationship – Found arrangement attempted to assist applicant’s tax position but did not transform employment relationship to independent contractor – Real nature was employment relationship – Applicant employee – Mediation ordered - Quality surveyor/estimator |