| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 135 |
| Hearing date | 11 Feb 2011 |
| Determination date | 06 April 2011 |
| Member | R A Monaghan |
| Representation | D Kumandan (in person) ; C Chilwell |
| Location | Auckland |
| Parties | Kumandan v Eastzone Realty Ltd |
| Summary | JURISDICTION – Whether employee or independent contractor - Applicant claimed dismissal unjustified – Respondent claimed applicant was independent contractor - Applicant visiting New Zealand (“NZ”) on visitor’s permit when decided to attempt to permanently move to NZ – Applicant approached respondent when saw advertisement for administrative real estate personal assistant – Parties discussed possible salesperson role rather than advertised position – Applicant told respondent would need work permit – Applicant obtained real estate salesperson’s qualification – Applicant began working for respondent while attempted to obtain work permit - Applicant obtained advice New Zealand Immigration Service (“NZIS”) would not grant work permit for real estate salesperson – In response respondent signed “Employer Supplementary Form for a Work Permit/Visa Application” which described applicant’s job title as salaried professional assistant – Application for work permit on that basis declined on basis NZIS not satisfied were no New Zealand citizens or residents available to do work offered – Respondent wrote to NZIS stating had been unable to find suitable New Zealand citizens or residents to perform work – Applicant issued with work permit – Applicant relationship with respondent ended approximately one year after work permit granted - Authority found s51A Real Estate Agents Act 1976 (“REAA”) applied at relevant time – Section 51A REAA provided that, if real estate agent and salesperson agreed expressly that relationship between them should be that of employer and independent contractor, then salesperson was for all purposes deemed to be engaged by agent under contract for services – Found s6 Employment Relations Act 2000 (“ERA”) did not limit effect of REAA – Found accordingly if s51A REAA applied, not necessary to apply tests set out in s6(2) and (3) ERA - Authority accepted applicant’s evidence never received or signed employment agreement – Authority found work applicant performed both before and after work permit granted was materially that of a real estate salesperson - Authority found true nature of parties’ agreement that applicant be engaged as real estate salesperson and that was express agreement applicant be engaged in capacity of independent contractor once received work permit – Found parties’ conduct at time work permit granted consistent with such an agreement - Found applicant independent contractor – No jurisdiction – Real estate salesperson |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s4;ERA s6;ERA s6(2);ERA s6(3);ERA s162;Immigration Act 1987;Real Estate Agents Act 1976 s45;Real Estate Agents Act 1976 s51A;Real Estate Agents Act 1976 s51A(1);Real Estate Agents Act 1976 s51A(5) |
| Cases Cited | Challenge Realty Ltd v Commissioner of Inland Revenue [1990] 3 NZLR 42 |
| Number of Pages | 11 |
| PDF File Link: | 2011_NZERA_Auckland_135.pdf [pdf 37 KB] |