| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 486/10 |
| Hearing date | 28 Jul 2010 |
| Determination date | 18 November 2010 |
| Member | K J Anderson |
| Representation | D Baldwin (in person) ; C Thompson |
| Location | Rotorua |
| Parties | Baldwin v Bossi's Hair and Beauty Ltd |
| Summary | JURISDICTION – Whether employee or independent contractor – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant independent contractor – Applicant owned and operated hairdressing salon – Applicant forced to close salon and seek alternative income – Applicant entered into discussions with respondent’s managing director (“K”) about working at respondent – Parties reached agreement whereby applicant would operate independently from respondent with payment split 50/50 from income applicant generated from own clients – K produced contract for applicant to sign – K modified standard employment agreement – Authority found modifications badly executed with references to respondent as employer left in and other ambiguities – Applicant invoiced respondent weekly – Applicant brought own equipment including products, work trolley and stool, steriliser, combs and brushes – Applicant brought list of clients and their contact details – K claimed applicant arranged all own appointments - Issue arose with applicant’s general behaviour – K attempted to discuss issue with applicant at local caf� which resulted in unpleasant exchange between parties – Applicant then returned to salon and verbally abused and swore at K – K requested applicant leave salon – K claimed applicant left with all equipment and client list - Authority found on evidence more probable than not that parties intended applicant be independent contractor – Found more probable than not applicant understood was independent contractor and found status acceptable until relationship ended suddenly on bad terms - Found applicant not under control that would be expected in employment relationship - Found apart from lunch break coverage from time to time, and opening hours of salon, appeared applicant had absolute freedom to come and go as pleased and work whatever days wished - Authority accepted may not have been sufficient client business available at respondent for applicant to make income required and hence sought work elsewhere – However, found was indicative of applicant being independent contractor whereby had freedom to canvas for income elsewhere - Found while applicant assisted other staff with showing them how to use product colours that had available, was no particular evidence applicant integrated into respondent – Found evidence suggested applicant operating in business on own account – Applicant presented invoices and at liberty to pursue business outside of respondent – Found true nature of relationship between parties was that applicant independent contractor – No jurisdiction – Application dismissed - Hairdresser |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6 |
| Cases Cited | Bryson v Three Foot Six Ltd [2005] ERNZ 372 ; [2005] 3 NZLR 721;McDonald v Ontrack Infrastructure Ltd [2010] ERNZ 223 |
| Number of Pages | 10 |
| PDF File Link: | aa 486_10.pdf [pdf 32 KB] |