| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 230 |
| Hearing date | 13 Apr 2011 |
| Determination date | 31 May 2011 |
| Member | E Robinson |
| Representation | D Rooke ; A Fursdon |
| Location | Auckland |
| Parties | Fitzgerald v Western After Hours Veterinary Clinic Ltd |
| Summary | JURISDICTION – Whether employee or independent contractor – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed did not unjustifiably dismiss applicant as applicant not employee but independent contractor – Respondent part of group of veterinary clinics – Applicant was shareholder of another clinic in group (“M”) – Applicant was also director and manager of M – Mr Kirkby (“K”) was shareholder in seven clinics, including respondent – K director of respondent and later became manager – Applicant worked locum shifts at respondent and at M – K concerned applicant worked other vet’s shifts without K’s knowledge – Applicant not rostered on anymore shifts – Applicant claimed parties intended employment relationship – K claimed in accordance with industry practice vets regarded as locums and were independent contractors – Applicant claimed no vets working at M had employment agreements and did nothing to change situation – Authority found applicant’s omission indicative of fact applicant considered vets at M to be independent contractors – Found applicant made no request for employment agreement – Found failure to make request indicative that applicant understood nature of relationship with respondent – Found applicant aware of difference between employee and independent contractor due to business experience – Found respondent’s expectation that vets enter client data on system or follow respondent’s rules, policies and procedures not determinative of employment relationship – Found applicant not subject to control of respondent in provision of services and position not integral to respondent’s operation – Applicant had professional accountancy advice on conduct of business and personal affairs – Found applicant invoiced both M and respondent utilising GST number – Found GST number not available to employee – Found sufficient evidence applicant in business on own account – Found applicant was independent contractor and therefore no unjustified dismissal |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6;ERA s103(1)(b) |
| Cases Cited | Bryson v Three Foot Six Limited (No 2) [2005] ERNZ 372;Cunningham v TNT Express Worldwide (NZ) Ltd [1993] ERNZ 695;Muollo v Rotaru [1995] 2 ERNZ 414;Singh v Eric James & Associates Limited [2010] NZEMPC 1 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Auckland_230.pdf [pdf 35 KB] |