| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 470 |
| Hearing date | 25 Jul 2011 - 24 Aug 2011 (2 days) |
| Determination date | 31 October 2011 |
| Member | R A Monaghan |
| Representation | A Penney (in person) ; D Hambly (in person) |
| Location | Auckland |
| Parties | Penney v Hambly |
| Summary | JURISDICTION – Whether employment relationship – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed not in employment relationship with applicant – Respondent sought childcare from private provider of educational and childcare services (“BJs”) – Respondent met applicant and decided applicant would be provided with food and accommodation and have use of vehicle – Parties disputed pay rate and whether rent payable – Respondent claimed applicant worked less than 50 hours per week as provided in agreement recorded with BJs – Authority found whether applicant engaged in personal activities provided limited assistance in determining true nature of relationship – Respondent to pay BJs fee which BJs would remit to applicant – Respondent agreed to pay applicant directly until procedures in place – Educator application form stated applicant would be contracted to BJs and classed as self-employed – Applicant indicated on form not ok having public liability insurance deducted from pay which was feature of self-employment – Applicant claimed arrangement with BJs made so respondent could access subsidy – Found understanding not determinative of legal nature of relationship – Confusion about payment and uncertainty about applicant’s liability to pay rent and tax arose – Applicant not treated as respondent’s employee for tax purposes – Applicant claimed did not understand arrangements with BJs – Found applicant should have considered position more carefully before signing contract – Found nature of documents too detailed, and too specific about nature of relationship with BJs and parties obligations to each other under educators’ contract to support view that obtaining subsidy for respondent was sole purpose – Found applicant should have taken notice of contents – Found BJs and respondent entered into series of obligations to each other – Found contract documents embodied legal agreements – Found arrangement not sham – Found applicant entered into binding relationship with BJs through which services supplied to respondent – Found no employment relationship |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6;Education (Home Based Care) Order 1992 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Auckland_470.pdf [pdf 45 KB] |