| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 376/09 |
| Hearing date | 2 Jul 2009 |
| Determination date | 29 October 2009 |
| Member | M Urlich |
| Representation | N Adjei ; R France |
| Location | Auckland |
| Parties | Yang v New Zealand College of Chinese Medicine Ltd |
| Summary | JURISDICTION – Whether employee or independent contractor – Applicant claimed parties’ intention applicant be employee – Respondent argued applicant contractor at all material times – Parties entered into series of “contract for services” before applicant commenced teaching at respondent – Contracts had detailed descriptions of what contractor status mean – Respondent’s director advised applicant contract temporary because applicant on probationary period – Applicant believed probationary period consistent with employment – Applicant’s work arrangement part-time, work hours set in consultation with respondent, and responsible for own tax liabilities – Applicant’s work included delivering lectures but developed own teaching materials and free to have other clients – Authority found terms and conditions agreed to by parties showed applicant contractor – Found applicant never challenged contractor status when respondent presented applicant with contracts consistent with parties’ intention applicant be contractor – Found probationary period not inconsistent with being contractor – Found respondent exercised degree of control over how applicant delivered lectures but not lectures’ content consistent with teaching role – Found finely balanced whether applicant fully integrated into respondent as applicant subject to performance review but maintained degree of independence in setting work hours and contracts with other clients – Found applicant fundamentally person in business of their own account – Applicant independent contractor – No jurisdiction – Teacher/Lecturer/Tutor |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6;ERA s6(2) |
| Cases Cited | Bryson v Three Foot Six Ltd [2005] 3 ERNZ 729;Clark v Northland Hunt Inc unreported, Perkins J, 27 Nov 2006, AC 66/06;Smith v Practical Plastics Ltd [1998] 1 ERNZ 323 |
| Number of Pages | 5 |
| PDF File Link: | aa 376_09.pdf [pdf 30 KB] |