Authority member Alex Leulu said the test was finely balanced, given the evidence showed there was an intention to pay Erceg for her work but did not determine any intention to create an employment (or contractual) relationship.
Erceg’s claim for unjustified disadvantage was also established when the firm changed her job title from operations director to customer co-ordinator at a meeting when she wasn’t present.
She was awarded $5000 compensation for the hurt and humiliation caused by what she said was a demotion.
The authority said the “unilateral decision” to change the job title without consultation was unreasonable, but her claim for constructive dismissal was unsuccessful after it was found her resignation was due to the actions of Yacht Finders Global towards someone else, rather than her.
Erceg, who represented herself, had claimed $50,000 compensation for both grievances.
The authority found no evidence to back her claims of bullying, that Yacht Finders Global had breached its Covid-19 commitments to her, that her claim for bad faith negotiations stood up, or that she had worked “unreasonable hours”.
Much of the alleged behaviour was attributed to Erceg’s relationship with her father and their “usually informal” style of communication, the ERA said.
Tobie Erceg’s role was described as an integral part of the business and she was represented to stakeholders as a senior member of the organisation.
She was engaged by the firm in October 2022 but since April that year she had helped her father with various administration tasks, which she continued to do until December, when she resigned over a workplace dispute involving her friend Aidan Harvey.
He had been introduced to the firm, allegedly as a prospective business partner, but the relationship between him and Gary Erceg soured and in December 2022, after a dispute, Yacht Finders Global ended its work agreement with Harvey by email.
Further communication continued between the Ercegs, including what the authority described as unsuccessful attempts to mend their familial differences.
In February 2023 Tobie Erceg and Harvey jointly lodged a statement of problem against Yacht Finders Global but Harvey later withdrew his claims against the firm.
Gary Erceg declined to comment when approached by NZME. Efforts have been made to reach Tobie Erceg via social media.
In establishing whether Erceg was an employee, the authority found there was no written employment agreement or contract, with most of what was agreed to arising from a meeting at an Auckland restaurant in September 2022.
The work arrangement’s aim was for her to be introduced further into the brokerage business, leading to a possible partnership role.
Tobie Erceg understood her work was to be a continuation of the previous arrangement, the nature of which appeared to consist of irregular work when she was needed.
Before she started in a paid role there was no discussion about her work hours, payment of tax or whether she was entitled to holidays and sick leave, the authority said.
Yacht Finders Global argued that Erceg was engaged as an independent contractor, under an arrangement described as a father helping his daughter.
For this reason, the firm said it arranged Erceg’s hours at one hour a day so it would not impede her childcare responsibilities; and that her pay was treated as payment “under the table” to avoid a clash with her Work and Income benefit payments.
To facilitate this, the firm paid her through a debit card which would be topped up with each pay.
Despite initial allegations that no tax had been paid, evidence showed tax had been deducted by the payer.
Tobie Erceg said she was required to work “all hours” as required, and not the one hour as stated.
Her closing submissions referred to further claims against the firm, but they weren’t considered in the authority’s decision.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.
