| Summary |
JURISDICTION – Applicant professional soccer player from Fiji - Applicant claimed first respondent (“Club”), second respondent (chairman and coach of Club)(“K”) and third respondent (company sponsoring Club, with K as a director and shareholder)(“KA”) all effectively employer – Applicant claimed never paid and unjustifiably constructively dismissed – Respondents each claimed not employer – K arranged individual employment agreement (“IEA”) between Club and applicant – Immigration documents stated applicant to play soccer for Club, with weekly pay, free accommodation, medical insurance and return airfare – Work permit and visa approved – Authority found Club effectively employment agency for players - Found applicant understood K’s offer was not as appeared in documentation – Found applicant understood conditions of playing for Club involved him not working for Club, K or KA, but that Club would find applicant work with other employers, as well as accommodation and airfares, as had for other players – Found applicant returned for three seasons under same conditions and knew some of players who had gone to Club before – Authority concluded applicant’s actions based on desire to obtain permanent residency in New Zealand (“NZ”) - K arranged for applicant to work for several employers during first season – Applicant left at end of Club season and returned for two further seasons – Applicant entered into near identical IEA in second season – No IEA entered into in third season, one of reasons being previous working visa still valid – After allegation applicant threw game and leaving Club for opposing club, informal meeting held between Club’s overseas players, Immigration and Police – Applicant transferred clubs – K informed Immigration – Applicant told Immigration not paid anything, forced to work for other employers and too scared of K to do anything – Authority found to establish contract of service, must establish that in consideration for wage or other remuneration, employee would provide own work and skill in performance of service for employer; sufficient control of employer; and that other provisions of contract were consistent with contract of service – Case law defined ‘sham’ as document resulting from common intention by parties not to create legal rights and duties which document gave appearance of creating – Found under s6 ERA, statement by parties relevant but not determinative of nature of relationship - Authority found IEAs shams – Found applicant understood throughout that coming to NZ to play soccer for Club and in return Club would provide free travel and help applicant find accommodation and work – Found no agreement any of respondents would provide applicant with work – No jurisdiction – Authority noted applicant’s relationship with Club ended at conclusion of each season and/or when applicant left NZ, so grievances regarding first and second seasons were year or two out of time – Found given immigration issues after leaving Club in third season, determination on raising personal grievance for third season would have been more finely balanced, had applicant been employee – Soccer player |