| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 179/09 |
| Hearing date | 18 Sep 2008 - 6 Oct 2008 (2 days) |
| Determination date | 11 June 2009 |
| Member | M Urlich |
| Representation | M Bailey ; N Faltaus |
| Location | Auckland |
| Parties | Dittmer v Progressive Investment Enterprise Ltd |
| Summary | JURISDICTION – Whether employee or independent contractor – Parties had business relationship prior to alleged employment - Applicant claimed offered and accepted managerial position – Claimed offered salary, car, lap-top and all work expenses paid - No written employment agreement (“EA”) however offer sealed by hand-shake – Applicant never received alleged entitlements – Limited work expenses covered by respondent – Applicant received several lump sum payments throughout relationship – Applicant conducted unpaid research for respondent – Applicant sent draft EA to respondent but never executed – Relationship ended when applicant realised respondent would not pay alleged salary – Authority found applicant independent contractor under all limbs of test – Found insufficient evidence of agreed terms between parties – Found parties intended applicant be contractor – Found applicant never asserted or enquired about employment status – Found applicant made no written demands for salary, car and lap-top to respondent – Found applicant continued to represent respondent’s interests after alleged employment relationship ended – Found applicant not controlled by respondent – Found applicant worked own hours, not required to attend staff meetings and no working relationship with other employees – Found applicant’s involvement peripheral to respondent’s business – Respondent’s business concerned with bathroom fit-outs, while applicant’s involvement concerned property investment – Found applicant fundamentally person in business of own account – Found applicant operated own businesses and used own business contact details when dealing with respondent’s clients – Found applicant independent contractor – No jurisdiction – Manager/Businessperson |
| Result | Application dismissed; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6;ERA s6(2) |
| Cases Cited | Bryson v Three Foot Six Ltd [2005] 1 ERNZ 372;Clark v Northland Hung Incorporated, unreported, Perkins J, 27 Nov 2006, AC66/06;Hemi Kiwikiwi v Maori Television Service, unreported, Shaw J, 2 Nov 2007, AC55/07;Smith v Practical Plastics Ltd [1998] 1 ERNZ 323 |
| Number of Pages | 8 |
| PDF File Link: | aa 179_09.pdf [pdf 600 KB] |