| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 297 |
| Determination date | 08 July 2011 |
| Member | V Campbell |
| Representation | E Whalley (in person) ; R Shand |
| Location | Auckland |
| Parties | Whalley v Raynmac Holdings Ltd t/a Cars and More |
| Summary | JURISDICTION – Whether employee or independent contractor – Matter determined on papers - Applicant claimed was employee and sexually harassed and unjustifiably dismissed by respondent – Respondent claimed applicant independent contractor – Supporting evidence showed applicant remained self-employed during time at respondent – Applicant told Inland Revenue Department self-employed and paid own tax – Authority found applicant wanted to continue tax advantages for self-employed and decided to work on commission only basis for respondent as contractor – Before engagement commenced applicant requested could retain personal cell phone number – Applicant’s personal number printed on business cards used while engaged by respondent – Parties discussed whether applicant could become employee but no agreement reached – Found likely parties’ intention was applicant engaged as contractor – Applicant claimed had to be at work everyday – Found applicant had significant flexibility when and how undertook duties and no evidence of supervision or reporting requirements – Found applicant free to adjust income through sales made, personal contacts and hours available to work – Applicant had own account and business expenses deducted from income before tax returns lodged – Applicant claimed required to paint vehicle and undertook welding job while engaged by respondent – Found undertook tasks as independent contractor and received cash payment – Found applicant knew was contractor when commenced engagement as insisted on using personal number and issued invoices for each vehicle sold – Found relationship between parties contract for services - No jurisdiction - Vehicle Sales Representative |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6 |
| Cases Cited | Bryson v Three Foot Six [2003] 1 ERNZ 581;Bryson v Three Foot Six [2005] ERNZ 372; [2005] 3 NZLR 721;Curlew v Harvey Norman Stores (NZ) Pty Ltd [2002] 1 ERNZ 114;Koia v Carlyon Holdings Ltd [2001] ERNZ 585;Singh v Eric James & Associates Ltd [2010] NZEMPC 1;Tse v Cieffe (NZ) Ltd [2009] ERNZ 20 |
| Number of Pages | 5 |
| PDF File Link: | 2011_NZERA_Auckland_297.pdf [pdf 17 KB] |