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Cockburn v Aylesford Automotive (2001) Ltd
23 Nov 2006, H Doyle, CA 162/06, (6 pages)
JURISDICTION - Whether employee or independent contractor - Applicant worked for respondent's previous owner, but not as employee - In September 2001 business sold - Applicant agreed to work full time for new owner and considered himself employee - Respondent claimed applicant told situation would remain same as under previous owner and it intended to engage applicant as contractor - No written agreement - IRD audited respondent's wage and tax records - IRD decided applicant an employee and sent letter to respondent stating PAYE to be deducted - Although respondent denied receiving letter began to deduct PAYE from October 2002 - Control factors weighed in favour of employment relationship - Applicant's role integral part of respondent's business and not accessory to it - Fundamental test more consistent with employment relationship than person in business on own account - No significant industry evidence - Factors indicative of employment relationship clearly outweighed factors indicative of independent contractor from October 2002 - Prior to that date applicant accounted personally for payment of taxes and had not considered true nature of relationship - Employee from October 2002 onwards - Warrant of fitness inspector
Result: Question answered in favour of applicant ; Costs reserved
Wu v Hamilton Holdings (2002) Ltd
30 Nov 2006, RA Monaghan, AA 364/06, (5 pages)
JURISDICTION - Whether employee or independent contractor - Applicant real estate salesperson - At interview applicant told position "commission only" - "Commission only" not synonymous with "contractor" - Discussion did not amount to express agreement to principal/contractor relationship - Authority accepted applicant received written agreement - Nothing to suggest applicant's attention drawn to clause stating engaged as contractor - No evidence of express agreement - Section 51A Real Estate Agents Act 1976 did not apply - Applicant's failure to respond to anything in employment agreement meant Authority prepared to imply or infer at least acquiescence to independent contractor clause - However, not determinative - Discussion about registration for GST, applicant's use of own vehicle, and agreement to pay salesperson's registration fee weighed in favour of contractor relationship, although fact applicant did not register for GST acknowledged - Applicant's general lack of kind of activity expected of salesperson so extreme most unlikely employer would have accepted it without comment - Applicant mentioned several times interest in real estate based on desire to understand own real estate transaction, to help friend with a transaction, and an interest in improving English skills - Consistent with short term personal interests, not wider loyalty and commitment of employment relationship - Independent contractor - No jurisdiction - Real estate salesperson
Result: Application dismissed ; Costs reserved
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