| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 146/10 |
| Hearing date | 13 Jul 2010 |
| Determination date | 10 September 2010 |
| Member | G J Wood |
| Representation | D Armstrong (in person) ; D Law |
| Location | Napier |
| Parties | Armstrong v Signature Homes Hawke's Bay Ltd |
| Summary | JURISDICTION - Whether employee or independent contractor - Applicant claimed not paid properly, not treated in good faith, unjustifiably disadvantaged and constructively dismissed - Respondent denied claims and claimed applicant independent contractor not employee - Applicant’s job to generate new home sales for respondent with sales target of one home per month - Applicant sold one home during 11 months of employment - Authority found following factors in favour of applicant being employee - Found respondent exercised degree of control over hours applicant worked and where work undertaken - Found applicant clearly integrated into respondent - Found potential customers would consider applicant part of respondent - Found respondent provided training to applicant - Authority found following factors in favour of applicant being independent contractor - Written agreement stated applicant independent contractor - Common intention of parties that applicant be independent contractor - Applicant never claimed was employee until date of resignation - Applicant paid commission only - Applicant not entitled to sick pay, holiday pay or other such payments - Applicant had to provide own car, mobile phone and fax machine - Applicant required to be GST registered and withholding tax not income tax deducted from commission - Applicant invoiced respondent using company he controlled - Authority accepted was industry practice of engaging new home sales consultants as contractors rather than employees - Found applicant independent contractor - No jurisdiction - New Home Sales Consultant |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Cases Cited | Singh v Eric James & Associates Ltd [2010] NZEmpC 1 |
| Number of Pages | 10 |
| PDF File Link: | wa 146_10.pdf [pdf 35 KB] |