B was a car groomer for H and signed a contract that specifically said he was an independent contractor and not an employee. B was paid $4 for a “wash and vac” and $15 for a “re-groom”. He issued weekly invoices for his work and H paid resident withholding tax.
However, when it came down to it, B was not in business of his own right – he was entirely under the authority of H. He had to work set hours. He had no control over the jobs he was given as they were allocated by H. His uniform and cleaning equipment were all provided. He could technically have employed another to do his work but only if H consented. In short, he wasn’t in business of his own account. He couldn’t make his business do any better or worse by managing his work more efficiently. As such, despite the contract and the financial set up, B was legally an employee.
Predictably enough, the reason all this came out was that there was a falling out and B was told there was no more work for him. The story goes like this. B left his jersey in the office. H heard another car groomer say it smelt of marijuana. On a Friday afternoon, H gave B a memo stating that a random drug test would be carried out on Monday. H said in evidence that, at the time he gave the memo to B, he had no intention of actually going ahead with the drug test. Apparently it was just meant to scare.
There was some discrepancy as to what took place on the Monday morning. B brought a glass of apple juice into the office, said “there you go, there’s my urine sample”, then drank it in front of H. H responded by saying B would not be given any more work until he had proven he was not taking any drugs. B then went to a doctor and gave a urine sample for testing. He returned to work the next day with the doctor’s note saying he had taken the test and was waiting for the result. On B’s evidence, at this, the employer said there was no work available regardless of the result of the drug test.
Although there was a discrepancy here, the Authority preferred B’s evidence as it noted there had been a fall in the amount of work available and that was more likely the reason for the lack of work. B was awarded lost wages plus $3,000.00 in compensation.
Employers – before you take on someone as an independent contractor – make sure that they really are one.
