| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 436 |
| Hearing date | 6 Sep 2011 |
| Determination date | 06 October 2011 |
| Member | E Robinson |
| Representation | L Lundbom (in person) ; G Stone |
| Location | Auckland |
| Parties | Lundbom v Avisit Solutions Ltd |
| Summary | JURISDICTION – Whether employee or independent contractor – Respondent Chief Executive Officer (“V”) claimed as no sales made agreed to pay applicant on hourly basis instead of commission basis but applicant to be responsible for own tax arrangements – V claimed not possible to accurately record sales achieved through particular work done so commission not practicable – Applicant continued to provide services to respondent and invoiced respondent for work – Applicant claimed had three areas of employment in addition to work carried out for respondent – Authority found no agreement confirming terms agreed by parties – Found parties discussed commission proposal but proposal withdrawn – Found no evidence to substantiate employment relationship based on commission only remuneration basis – Found respondent did not deduct PAYE from amounts invoiced by and paid to applicant – V did not query non-inclusion of GST on invoices because believed applicant earned below rate required to be registered for GST – Found applicant aware of difference between employee and independent contractor based on business practises and experience – Found applicant believed independent contractor with expectation of profit share – Found applicant worked on sporadic basis – Found applicant had no expectation of ongoing project work – Found applicant carried out work at own premises, in own time and using own equipment – Found nature of work carried out by applicant and method of working did not appear to be integral to respondent’s business – Found information technology industry had high use of contractors – Found industry practise highly relevant factor – Found applicant not subject to control of respondent or position integral to operation at respondent – Found respondent did not pay PAYE on behalf of applicant – Found applicant rendered invoices for hours worked and paid accordingly – Found although applicant did not submit invoices with GST component, not determinative factor – Found applicant operated business on own account – Found applicant determined hourly rate – Found applicant independent contractor not employee |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6 |
| 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_436.pdf [pdf 50 KB] |