| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 522 |
| Hearing date | 20 Sep 2011 |
| Determination date | 09 December 2011 |
| Member | R Larmer |
| Representation | Te Kani Williams ; T Rainey |
| Location | Auckland |
| Parties | Marsic v Body Corporate 198245 (The Ridge) |
| Summary | JURISDICTION – Whether applicant employee – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed never employed applicant – Applicant claimed parties had mutual intention to enter employment relationship before agreement signed – Authority found most terms in employment agreement indicative of independent contractor arrangement – Found respondent did not comply with employment related obligations – Found more likely agreement reflected parties’ mutual intentions regarding status of arrangement – Found respondent’s resolution did not alter terms of agreement or relationship between parties – Found use of term ‘employment’ not intended to express view about status of relationship between parties – Found reference to ‘salary’ not determinative of parties’ relationship – Found parties’ mutual intention at commencement of relationship was that applicant would be independent contractor – Found parties operated in practice as if they were in independent contractor arrangement – Found applicant failed to assert rights associated with employment relationship – Found respondent exercised very little control over applicant and applicant had substantial degree of autonomy – Found applicant had no set days and not required to report to respondent on day-to-day or weekly basis – Found applicant had total flexibility to run other business activities around services required by respondent – Found applicant not integrated into respondent – Found applicant in business on own account – Found applicant entered into series of tax returns which identified applicant as self employed and income as having come from self employment – Found applicant did not act on tax adviser’s advice that applicant not treated as employee for tax purposes – Found applicant’s professed naivety regarding tax arrangements not credible – Found insufficient evidence to come to definitive view about industry practice – Found applicant was independent contractor – No employment relationship – No jurisdiction – Building Manager |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6;ERA s6(1);ERA s6(2);ERA s6(3);Holidays Act 2003 |
| Cases Cited | Bryson v Three Foot Six Ltd [2005] ERNZ 372;Clark v Northland Hunt Inc (2006) 4 NZELR 23 |
| Number of Pages | 16 |
| PDF File Link: | 2011_NZERA_Auckland_522.pdf [pdf 73 KB] |