A very recent decision by the Chief Judge of the Employment Court has been very useful at setting out the rules surrounding who is and who is not a volunteer for the purposes of assessing rights and obligations around minimum employment entitlements.
The case, which revolved around a camping ground in the Tauranga region, examined the status of a person who provided services to the owners of the camping ground in return for a very small cash payment and a waiver of camping fees.
Background
The issue came about because the person who provided the services (a Mr K) thought that he had been dismissed. He spoke to a labour inspector about his situation. The labour inspector indicated she thought Mr Kidd was actually an employee notwithstanding that he had been described as a “helper” or “volunteer” by the owners.
To have access to the personal grievance procedure a person must be regarded, legally, as an employee. The flow on effect from being an employee is that a person becomes entitled to minimum entitlements for things such as annual leave and the minimum wage.
It was common ground that Mr K and his wife had moved to the camp ground as residents and that after about three months they were approached by the camp ground owners to undertake some duties to “help out” the owners (and to replace some other “helpers” who had just left).
This they did, initially, twice a week.
Four days on, four days off
It later came to be that they operated on a shift basis with another couple who were also “helpers”. This was on the basis of a four days on, four days off roster.
There was agreement that there would always be one couple on duty at any time. There was also a fairly strict list of duties to be undertaken by the couple. There was only one restriction placed on who could do the work and that was that the male of the couple would be the one who had to remove and replace the toilet cassettes (because of health & safety concerns about the weight and cumbersome nature of the cassettes).
The resource consent for the camping ground required there always be a “manager” on site.
‘Helping’ in return for a ‘reward’
In return for “helping”, Mr K and his wife were entitled to a waiver of their camp fees (which, by the end of their time at the camping ground, amounted to $210.00 per week) plus a cash payment of $100.00 less $25.00 for each day they were not working during their 4 day on period.
The Court had to decide whether Mr K (and his wife) were employees as they claimed, or were “volunteers” as the camp ground owners claimed.
There is a special provision in the Employment Relations Act which exempts “volunteers” from the definition of “employee” and this was what the owners were relying on to resist the claim for wage arrears, breaches of employment legislation and, of course, a personal grievance.
Volunteer or employee?
The Court determined that whatever the exclusory definition of volunteer was, Mr K was not excluded from being an employee, because he both expected to be rewarded and was rewarded for what he did. This notion of being rewarded for effort is part of the legal definition of employee.
The Court considered, in depth, what it means to be “in employment”. In doing so the Court looked at the usual tests for determining whether a person is an employee or are another sort of person such as a contractor.
Here the Court looked at matters such as - who controlled what was done? Was it Mr K or was it the owners? The Court found it was the owners who controlled things, indicating an employment relationship.
Another matter the Court considered was whether what Mr K was doing an integral part of the camp ground or could Mr K be seen as operating on his own account? The Court held that because the resource consent required a manager to be on site at all times, coupled with what Mr K did and how he did it, it supported a finding that there was an employment relationship.
Was there intent to create employment relationship?
Also of interest to the Court was the “intentions test” – did the two parties intend to create legal relations and was there an expectation that one party would do something for which they would receive a reward? In In the case of Mr K it was fairly apparent he was expected to undertake duties and be paid for this (and that those rights to “reward” would be enforceable).
In the end the Court held that despite the camp owners simply calling Mr K a “volunteer”, this was not enough to disentitle a person to the rights otherwise afforded an employee. Mr K was an employee. As a result of this finding the Court went on to determine Mr K’s personal grievance, which was found to be without foundation. The Court left the calculation of wage arrears and annual leave to be undertaken by the parties.
