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Cadman v Napier Girls High School Board of Trustees
27 Aug 2007, P R Stapp, WA 119/07, (10 pages)
JURISDICTION - Whether employee or independent contractor - Applicant commenced work as contractor - Submitted invoices and withholding tax deducted - At some point applicant advised had been moved onto payroll and subject to PAYE - However, respondent continued to deduct withholding tax and applicant not paid in same manner as other employees - Conversation might have been significant but parties could not discover who made change - No record of important change in relationship other that about tax - Tax change suspect because of dispute over who made change and what deduction actually was - Applicant's role and regularity of attendance made it entirely reasonable for him to use workshop and be on phone list - Applicant subject to some control and integration, but free to put total hours on invoice without providing further details - Nothing to prevent applicant taking time off if needed - No paid holidays - Even though applicant became integrated and familiar in work place, control, and evidence surrounding purported change in status, tilted balance in favour of contractual arrangement - Control and integration outweighed by payment methods - Applicant independent contractor - No jurisdiction - Maintenance worker
Result: Application dismissed ; Costs reserved
Carruthers v Milano International (NZ) Ltd
15 May 2007, R A Monaghan, AA 145/07, (6 pages)
JURISDICTION - Whether employee or independent contractor - Nothing to suggest parties turned mind to question of status, although likely respondent assumed contracting relationship - Applicant engaged as manager and to set up new sales system - Applicant had use of company vehicle, phone and office with set hours of work - Many of applicant's activities and way presented himself to third parties consistent with employment relationship - However, did not exclude possibility of contracting relationship - Payment by way of retainer and commission on submission of invoices from applicant's company - Significant applicant derived income directly from his company, not respondent - Applicant could not disavow implications of approach - Arrangement of affairs provided advantages not available if employee and continued for several years without challenge - Respondent exercised degree of control over applicant's activities, although nature of position meant had some autonomy - Attainment of skills and seniority very reason applicant able to offer services to others in way consistent with other activities - Independent contractor - No jurisdiction
Result: Application dismissed ; Costs reserved
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Falcone v Civic Coporation Ltd
12 Apr 2007, J Crichton, CA 41/07, (5 pages)
JURISDICTION - Whether employment relationship existed - Applicant offered employment by respondent - Respondent submitted applicant rejected offer and proposed arrangement where he would accept lesser salary but also derive income from leasing property to respondent - Respondent rejected proposal and advised applicant it no longer wished to negotiate with him - No formal acceptance of position - Applicant believed acceptance indicated by parties' behaviour - Respondent had sent applicant on training and provided him with materials in anticipation of his employment - Did not constitute behaviour which suggested respondent believed concluded bargain - Inconceivable parties could have believed had settled bargain in context of talking about fundamental matters such as a dramatic reduction in salary offset against partial sub-contract arrangement - No settled understanding as to nature of arrangement between them - Applicant's proposal was counter offer and respondent rejected it - No employment relationship - No jurisdiction - Compliance officer
Result: Application dismissed ; Costs reserved
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von Tunzelman v Taylor & Anor
9 Jul 2007, L Robinson, AA 206/07, (7 pages)
PRACTICE AND PROCEDURE – Identity of employer – First respondent director of second respondent – Claimed only second respondent had legal relationship with applicant – Applicant previously employed by first respondent – Had no knowledge of second respondent, but accepted worked for publication – Applicant entered into and concluded negotiations with first applicant – First respondent never disclosed acting as agent – No written agreement – Doctrine of undisclosed principal – Applicant entitled to proceed against first respondent – JURISDICTION – Whether employee or independent contractor – Applicant claimed paid weekly retainer and commission – Respondent contended applicant not paid retainer but “advance” commission – Applicant’s evidence preferred – Applicant subject to significant control and integral part of operation – Applicant an employee – UNJUSTIFIED DISMISSAL – Applicant drinking with first respondent after work – Alleged told would need to find a new job and would not be paid commission – Applicant's attempts to contact respondent to clarify situation unsuccessful – Applicant’s evidence accepted – Dismissal unjustified – Applicant did not seek remedies - ARREARS – Applicant claimed owed outstanding commission – Respondent submitted not owed anything as did not earn any – Also said not paid because did not submit invoices – Statements inconsistent and Authority rejected contention applicant required to submit invoices – Applicant entitled to commission of greater of 10 percent of total sales, or $40,000 – Authority unable to determine arrears without sales figures – Respondents ordered to supply information
Result: Application granted ; Arrears of wages (Quantum to be determined) ; Orders accordingly ; No order for costs
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Wang v Horton Media Ltd
25 May 2007, J Wilson, AA 159/07, (5 pages)
JURISDICTION - Whether employee or independent contractor - Applicant previously employed by respondent - Sought re-employment after left to work for competitor - Given circumstances of departure, respondent reluctant to re-employ applicant but agreed to retain her as independent contractor in limited role - Applicant formed company and it entered into contract with respondent - Parties intended contractor relationship - Only control was requirement to act as exclusive agent when selling printing services - Applicant spent relatively small part of her time acting for respondent and not integrated with its business - Applicant in business for herself - Independent contractor - No jurisdiction - Sales agent
Result: Application dismissed ; Costs reserved
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Williams v Mount Shop Ltd
5 Mar 2008, R A Monaghan, AA 76/08, (5 pages)
JURISDICTION – Whether applicant employee – Applicant in de facto relationship with respondent’s director – Ran family home while director developed respondent - Applicant paid “salary” in accordance with employment agreement - Paid household expenses out of “salary” – Agreement described position as customer service role - Applicant believed helped in sense work she did freed up director to work with customers – However, did not carry out any activities set out in agreement and “worked” in family home – While definition of employee included home worker did not mean same as home-maker – Homemaking activities in partnership with director did not amount to work for respondent at all, let alone work done in course of respondent’s business as importer and distributor of car parts – Payments applicant received not payments for services provided to respondent – Employment agreement made no difference to conclusion – Clear “employment” in document bore no resemblance to reality of arrangement and not valid – Although paid as if employee and “employment” status reflected in accounts, not a matter for Authority – No genuine employment relationship – No jurisdiction
Result: Application dismissed ; Costs reserved
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