| Summary |
JURISDICTION – Respondent argued applicant independent contractor not employee - Independent contractor agreement (“ICA”) applied – Four successive ICA contracts negotiated over twelve years – Applicant not at disadvantage in negotiations and took advice - Authority found intention of parties that applicant independent contractor – Authority applied control, integration and fundamental tests - Under control test, Authority found applicant bound to observe roster prepared by management, including rostered breaks – Applicant rendered weekly invoices, as stipulated in ICA – Income varied only for on-call weekend work – Authority accepted applicant’s evidence that applicant required to seek authorisation to perform unrostered work – Found applicant not permitted real choice as to which services applicant provided – ICA stated patients were respondent’s approved patients, not applicant’s clients – Applicant required to attend staff meetings, receive on-going education and participate in committees – No difference between work performed by military medical officers and civilian medical officers such as applicant – Respondent provided applicant’s tools, equipment and materials – Authority found applicant subject to very significant and real control by respondent – Under integration test, Authority found applicant treated no differently on day to day basis than military personnel – Respondent sought to excuse applicant from jury service twice so duties not interrupted – Applicant required to participate in committees and audited medics – Authority found applicant was integral part of Navy Hospital operation – Under fundamental test, Authority found invoicing arrangement was mere consequence of ICA contractual labelling – Applicant first engaged as temporary locum then worked exclusively for respondent on effectively full-time basis for past eight years – No evidence that applicant operated business or commercial operation – No scope to generate increased earnings or profit – Applicant not in business on own account – Found in substance and reality, was employment relationship – Parties to negotiate consequent management of tax implications and holiday entitlements - UNJUSTIFIED DISMISSAL – Summary dismissal – Respondent invoked clause in ICA in dismissal letter - Authority found respondent could not lawfully invoke clause, as employer must be justified in decision to terminate employment, rather than simply terminating contractor’s engagement – Applicant considered had inappropriate level of competence and inadequate training to deal with acutely deteriorating hyperbaric cases – Applicant and colleague (“M”) communicated concerns to Navy Hospital General Manager (“C”) – Applicant contacted Medical Council of New Zealand (“MCNZ”), who responded that action should be taken - Applicant claimed C replied applicant could not work at Navy Hospital if was not on hyperbaric unit roster – C claimed said actions could have impact on applicant’s contract - C told applicant that under contract applicant could not unilaterally vary services provided and that C did not agree to variation - Applicant became distressed and unfit for work – Applicant’s counsel informed C that could not return to work until suitable arrangement endorsed by MCNZ made so applicant could regard self as trained and competent - Applicant dismissed – Authority found respondent’s remedial arrangements made with MCNZ not communicated to applicant before dismissed – Found no failure to comply with lawful and reasonable instruction – Applicant not directed to perform hyperbaric roster work in form of an instruction – Applicant’s withdrawal from hyperbaric roster was contingent upon appropriate endorsement from MCNZ, so no complete refusal to comply with instruction – Found respondent did not indicate willingness to submit to dispute resolution procedures set out in ICA – Respondent failed to properly and fairly engage in dialogue with applicant that was directed towards resolving real and genuine concerns that applicant and colleague had raised – Failure to act in good faith to applicant, contrary to s4 ERA – Found ending of lengthy employment relationship callous, hasty and rash – In all circumstances, immediate termination of employment not required – Respondent’s response to medico-legal issues raised in parties dispute seriously deficient – Dismissal unjustified – REMEDIES – No contributory conduct – Authority exercised discretion to award actual loss up to date of determination – Lost wages of $81,072.19 awarded – Authority accepted applicant’s evidence of emotional trauma and distress as result of respondent’s actions – Applicant became physically unwell – Considering extended period of engagement with respondent and nature of grievance, $20,000 compensation appropriate - Civilian medical officer |