In this particular case Mr M was engaged by Allied and “supplied” to OnTrack Infrastructure to cover temporary work requirements of repairing the main trunk line between Picton and Invercargill. Mr M was part of an eleven man gang, nine of whom were permanent employees of OnTrack. Engagement commenced in March 2007 and was terminated on 8 November 2007.
Mr M wished to pursue a personal grievance against OnTrack for unjustified dismissal. If the relationship between Mr M and OnTrack was something other than employer/employee then there was no coverage under the Employment Relations Act and Mr M’s action would fail before it even got to Court.
The case started in the Employment Relations Authority and was heard on appeal by the full Court of the
The onus was on Mr M to establish the existence of an employment relationship between himself and OnTrack. To determine the real nature of the relationship the Court said that “all relevant matters” would need to be considered including those that indicate the intention of the parties. Obviously this included the written and oral terms of any contract between the parties.
Significantly the Court accepted that it was possible at law to argue that Mr M was employed by OnTrack. They said that the case really depended upon the facts.
The starting point for consideration of the case was the contractual documents that existed at the commencement of the placement with OnTrack. Those documents are to be considered by the Judge sitting alone at the next hearing. The actions of both parties were also considered important because through their actions parties can alter an initial relationship contractor/principal to one of employer/employee.
The case has been referred from the full Court back to a sole Employment Court Judge to hear submissions and to decide the case.
We will let you know when the decision comes out.
