| Summary |
JURISDICTION - Whether employee or independent contractor - Applicant claimed employee - Respondent claimed applicant independent contractor - Respondent claimed entered into arrangement with applicant to pay for some expenses of applicant’s trip to China on understanding applicant would make business contacts for respondent - Claimed agreed to pay applicant retainer and commission on profits of any product sold - Applicant claimed on three month trial period and depending on success in obtaining contracts would become permanent employee - Applicant submitted invoices to respondent - Approximately six months later applicant “resigned” and renegotiated arrangement with respondent - Approximately four months after that applicant terminated relationship with respondent - Applicant claimed well integrated into respondent, respondent exercised control over him and publicly represented him as employee - Claimed received no other income during time engaged with respondent - Applicant claimed respondent provided him with business card, email address, cell phone, and office at respondent’s head office and purchased a Hummer for his use - Applicant claimed undertook role overseeing production, required to manage an employee, and had to report to respondent’s directors several times per day - Applicant claimed even if employment agreement did not exist at commencement of engagement employment relationship evolved over time - Respondent claimed business card provided at applicant’s request and to reinforce status when dealing with Chinese customers - Claimed position listed on card did not exist - Claimed email address on business card not consistent with respondent’s email address and applicant in fact used personal email address for respondent’s business - Claimed assisted applicant with purchase of Hummer because applicant could not raise finance and indicated would impress Chinese clients - Claimed did not provide applicant with cell phone but simply reimbursed him for business expenses - Claimed room available for respondent’s use at head office but not an office - Claimed applicant not required to manage employee rather to assist him - Authority found never formal written contract between parties - Authority not persuaded by applicant’s explanation about three month trial period - Found at commencement of relationship both parties understood applicant on contract for services - Found all transactions between parties suggested relationship between contractor and principle - Found applicant exerted very little control over how applicant represented them - Found after several months did request applicant provide regular reports of sales activities but did not direct what activities should be - Found only limitation placed on applicant that not compete with respondent - Found applicant not integrated into respondent - Found applicant not on payroll, did not use respondent’s email address, and not part of management structure - Found applicant’s activities for respondent discussed with directors and applicant free to undertake whatever business activities saw fit to achieve sales on behalf of respondent - Neither party provided Authority with evidence of industry practice leaving Authority to conclude no standard industry practice existed - Applicant independent contractor - No jurisdiction - Sales role |