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Qiolevu v JJ's on Park [2012] FJET 39; ERT Grievance 153.2011 (26 October 2012)

IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA

ERT Grievance No. 153 of 2011

BETWEEN:

MITIELI QIOLEVU
GRIEVOR

AND:

JJ's ON THE PARK
EMPLOYER

Ms. Lolokobou Ratumaitavuki, Labour Officer for the Grievor
Mr. N. Shivam for the Employer

Date of Hearing: 18th May 2012
Date of Judgment: 26th October 2012

______________________________________________________________________________

RULING ON QUESTION OF LAW

1.0 Preliminary Application Before the Employment Relations Tribunal (or "the ERT")

1.1 On 18th May 2012, the Tribunal heard two preliminary issues or questions of law raised by the employer as outlined at paragraph 4 of their Final Submissions dated 1st June 2012:-

1. Whether or not the grievor was a causal worker or employee; and
2. Whether or not the matter pertains to a contract of service or contract for service.
   

1.2 Clearly the preliminary matter is twofold. First, this Tribunal is tasked to consider the implication of declaring a worker to be a 'casual worker' under the provisions of the Employment Relations Promulgation 2007 (or "the ERP") pursuant to the definition section, that is, under section 4 of the ERP which is now the law governing and regulating employment relations in Fiji under a statutory provision and second, whether or not the grievor was indeed an independent contractor, hence there was a contract for service (express or implied) between JJ's on the Park and Mr Qiolevu. To that effect, the Tribunal will need to ascertain from facts and evidence what was the real employment situation in this instance.

2.0 Analysis of Facts & Evidence

2.1 The grievor provided the following facts and evidence:-

1. He is a freelancing Musician who plays guitar, bass and drums but specializes in the Keyboard and Piano.
   
2. For purposes of this grievance matter, it is relevant to note that between March 2004 to March 2011, the grevior told the ERT that he had played Piano at JJ's restaurant in the evenings between 6pm-10pm.
   
3. Prior to this, he was a resident Musician at Sheraton Resort in Nadi. It was not clear whether or not he was a full-time worker there but he stated that he had a contract of employment with Sheraton Resort before he agreed to play for JJ's. He did not produce any contract (in whatever nature) to the Tribunal as it would have been helpful to ascertain whether or not he had the rational capacity to understand the difference between a contract of service and a contract for service. This is because he gave evidence he did not understand the difference and I will come to this evidence in due course.
   
4. The grievor further stated that in between playing at JJ's, he also played at other places, particularly at Sheraton Hotel in Nadi. In addition to this, during 2010–2011 when he was financially supporting his son's University expenses, he also took up teaching music to some private students, at Fiji Music School and FNU. He admitted in his cross-examination that he was entirely free to seek other jobs and accept them without JJ's having a say or objection in the matter.
   
5. Work history of the grievor indicates that on or around February 2004, the Grievor was contacted by JJ's to step in the role of their regular player/musician who had just passed away. The grievor told the ERT that JJ's had expressly told him that they were requesting that he play for them as an independent contractor at an agreed rate per hour as payment for his service.
   
6. In fact, he admitted that he was aware that the payment he received at JJ's was higher than any hourly rate offered through a usual contract of employment.
   
7. It is not known to this Tribunal what is the going minimum rate for musicians working full-time for an employer within in a normal contract of service although, the grevior told the Tribunal that at Sheraton Hotel he was paid $75.00 per hour and FNU paid him $22.00 an hour while in contrast, JJ's would normally offer around $2.60 per hour within a minimum of 8 hours work per day. What is of relevance to this Tribunal is that the grievor admitted in his cross examination that he appreciated that when he agreed to play for JJ's, the rate he was paid hourly would not have been offered to him within a normal contract of service. The rate he had agreed to that was offered by JJ's was $15.00 per hour for four hours per night he performed.
   
8. I also noted that in cross-examination, the grievor admitted that he did not quite understand the definition of an independent contractor although he clearly had willingly and quite voluntarily (without any due pressure or coercion) agreed to the arrangement and continued to play at JJ's at the times arranged between him and JJ's in 2004 and thereafter.
   
9. Clearly the grievor had stated in his evidence that he had agreed to play for JJ's as an independent contractor; and evidence was clear that there was no written contract for service entered and signed between the parties to this effect.
   
10. There were some inconsistencies in the grievor's evidence when he asserted that when he came on board to play for JJ's in 2004, he had requested JJ's for a contract of employment. However, he could not state from whom he had sought the same, nor he could confirm or deny that he had put this request in writing to JJ's at the material time. The grievor further asserted that sometime again in 2007 and 2009, he had asked for a contract of employment from JJ's, but was not able to state again specifically from whom he was seeking the same other than saying from the Management. Again it appears that he had not put a written request to JJ's or its Management within the period 2004-2011.
    
11. That said, in his cross-examination, he admitted that initially when he had joined JJ's he did not ask for a contract because he was 'promised the company would look after him'.
    
12. Further, if I am to place weight on the grievor's evidence, it seems to the Tribunal that he only began to request for a contract of service from JJ's because he was 'unhappy with the way things were going on and the changes going on"; here it appears he was unhappy with the reduced payment in terms of the reduction of days gradually from 2004 to 2011. This is because from 2004 to 2007, the grievor told the ERT that he would play on about six (6) nights a week between 6pm-10pm which gradually reduced to five (5) nights and then four (4) nights a week. In 2011, he only played for about two (2) nights a week. As agreed, he would receive $60 cash at the end of every night he would play for JJ's which also later reduced to $50 cash a night.
    
13. The grievor admitted in his evidence that he did not present any objection to these variations made to his pay or reduced days of work at the material time until he was told by JJ's that he could no longer play for them in 2011. He stated that "...at least they should notify me for a month ...because I have committed like my son, I am paying his school fees...".
    
14. It was confirmed by the grievor's evidence that the method of payment in cash after the grievor's performance every night was such that he would receive his payment from the Petty Cash Till where he would sign a voucher for receipt of the payment. There was no FNPF or tax (PAYE) deductions made from the payment he would receive from JJ's and neither he was entitled to sick leave or holiday leave benefits. In fact throughout his seven (7) years of playing at JJ's it appears he was comfortable with this arrangement.
    
15. Further a sick sheet was not usually required, and he had the liberty to call in and advise JJ's that he will not be coming to play on a certain day. In fact he agreed that none of the employment rules applied to him where in a normal circumstance, if he did not turn up for work, no warning letters would be (or were) issued to him in the seven years.
    
16. Going back to the issue of the rate he received for his performance per hour, he admitted that he was offered and getting almost $15.00 per hour as opposed to a normal musician's rate on an average of 8 hours work, which is about $2.60 per hour, although he said he was not aware of the normal hourly rate offered by JJ's for musicians in a full-time position.
    
17. When questioned whether or not he had issues with receiving cash daily as opposed to other employees of JJ's who were paid on weekly basis, he responded by saying:-
    

"...yes, first of all they told me that I am casual worker but as casual worker they engaged me before 24hours ...as casual worker they have to release me after 24 hours..."

18. I will shortly come to this aspect of evidence in terms of defining what entails a 'casual worker's rights and entitlement' in the ERP 2007. At the outset, it appears Mr Qiolevu did not object at the material time and if he did, it surprises me that he only acted to correct all these issues (reduction in days of work, reduction in pay, and the method of pay) once he was completely released from JJ's from playing there.
    
19. Without a doubt, it is my opinion that he was treated in a different manner from the other employees of JJ's in that his rights and entitlements entailed daily payment of cash after his (musical) performance or "gig" was complete where he was also given a complimentary meal or drinks every night that he played at JJ's. In fact he was entitled to drink alcohol while he played his music unlike other staff members of JJ's who were never allowed to drink alcohol while on duty. He gave evidence that "...most of them (employees) drank after they finished their work..." which clearly meant that the grievor appreciated what were the rules of the employer for their normal employees (in full-time position) while they were on duty.
    
20. The employer further alleged that on one of the nights that he had played at JJ's, he was overly intoxicated and passed out sleeping on the premises for the night. The grievor admitted the incident and also added that he knew that other staff was not allowed these privileges nor he received a warning letter from JJ's for this particular incident which in a normal scenario would be deemed 'misconduct' for normal employees.
    
21. He also admitted that he never wore the JJ's uniform like the other staff members as he was told that he was not a permanent staff. However, he would wear a uniform at the other places he had worked and also was bound by their terms and conditions of employment.
    
22. He was also left to his own devises when selecting music for his performance as he decided what he wanted to play and how he would play it. In that regard, he admitted that he provided his own music and tunes and there was no conditions imposed by the employer as he also agreed when questioned that as a professional his judgment in the way he delivered his service was respected by the employer. The employer alleged that he was his "own master" as he was allowed free decision-making, for example, if staff from the Management ever requested for a different tune to be played such as the "fast numbers like the night club" he would outright refuse. The grievor attempted to justify that he played music of his choice that he deemed appropriate for a restaurant atmosphere and so, he only played music fitting such as jazz, blues and classical numbers.
    
23. He was also allowed or rather not interfered with, when he decided to teach students at FNU where they was paid him $22.00 per hour. It was not clear how many hours he worked for FNU in a day or week.
    
24. He also told the ERT that he had signed a contract of service as an employee of FNU for three months on two separate occasions, in 2009 and 2010. He further stated that he had worked for FNU as an employee by the day and worked for JJ's from 6.00pm to 10.00pm. The said contract of service was not presented to the Tribunal to scrutinize the nature of employment and his rights and entitlements therein, but clearly the grievor here considered himself both the employee of FNU and JJ's at the same time.
    
25. In March 2011, he was informed not to play at JJ's anymore. He admitted that he never in the seven years he played at JJ's, had sought legal advice, nor did he approach the Labour Department to lodge a Grievance until he was informed in 2011 not to play at JJ's for a while. He said that when he was asked to take a break and told that he could not come back to play for JJ's given the reason that there were no guests for him to entertain and business was slow, he approached Ministry of Labour for redress.
    

2.2 JJ's presented the following evidence through Mr Mazey who stated as follows:-

1. He was the Managing Director for JJ's for about 12 years at the material time. He knew the Grievor as a Piano player hired by JJ's as an independent contractor as was done with the other Musicians. The Grievor began playing at JJ's in 2004 and was a regular contractor at JJ's. He was paid cash at the end of every night he played at JJ's.
   
2. JJ's had arranged with the Grievor to play on week days because he played at other places during the weekends. The Grievor began in 2004 playing 6 nights a week for $60 and this period over the years was reduced to eventually 2 nights in 2011 at $50 a night.
   
3. On a night that he played at JJ's, the Grievor usually started at 6pm, played for half an hour then took a 15 minute break, then he would resume playing for another half hour and take a half hour meal break (however, complimentary dinner was not provided to any employee of JJ's). Then he would resume playing for half hour periods with 15 minute breaks. The hours actually played would average up-to 2 hours per night.
   
4. Mr Mazey stated that at times, the Grievor would take longer breaks then necessary and play less than required but the Management did not take any disciplinary action or control his actions as they would with their usual employees at JJ's.
   
5. JJ's never paid FNPF or PAYE from the Grievor's payments as done with regular staff.

There was also no sick leave or holiday leave entitlement to the Grievor as he was never an employee. In fact he stated that the Grievor never requested for holiday leave or sick leave pay as he never was an employee entitled to the same. This witness confirmed that the Grievor was not an employee of JJ's as there was no contract of employment between the parties, and neither was he recorded as a staff of JJ's at any time. Further, JJ's never included the Grievor in their staff meetings, or asked him to wear their uniforms or issued him any timecards.

6. The Grievor never approached Management for a contract of employment in the (seven year) period he played at JJ's. Further the Grievor never made any complaints or raised any grievance to the Management or JJ's except once about the meal he was receiving every night he played.
   
7. The Grievor played whatever he liked and chose to play from his own memory. In that regard, the Grievor was never dictated or told what he should play at JJ's. The Grievor was also allowed to consume alcohol while he played at JJ's whereas the employee of JJ's were strictly prohibited to do the same as it was against the company terms and conditions of employment;
   
8. The Grievor was free to play at other places if he liked or to seek work other than what he did at JJ's.
   
9. The days the Grievor played at JJ's was reduced over the years because the business was experiencing a downturn and financial difficulties. There were fewer guests and eventually the business could not afford to pay the Grievor that forced them to make some cut-backs in order to survive and pay their regular payroll employees. This is when the Food and Beverages Manager at the time Mr Anish Lal called the Grievor sometimes in March 2011 to advise him that there were no guests to entertain and JJ's could not afford to pay him for now and asked him to take a break from playing.
   
10. Mr. Mazey further stated he was on the understanding that the Grievor might be coming back once their business improved but he was surprised to receive a letter from the Ministry of Labour to attend Mediation with regards to the alleged "unfair dismissal" of the Grievor;
    
11. He stated that he could not understand why there was such a claim as Mr Qiolevu never was an employee of JJ's as he was contracted to play his music and piano as an independent contractor for JJ's.
    

3.0 Applicable Law

3.1 As I see, first and the foremost issue of law that is in contention pertains to whether or not Mr Qiolevu was in fact hired under a contract of service or was he accorded a contract for service since March 2004 until March 2011when he was discharged by JJ's as alleged by the employer.

3.2 That is, whether or not the Mr Qiolevu was hired as an independent contractor to provide his professional service as a pianist/musician at the JJ's restaurant as per any agreed terms and conditions (written or implied) and thus he was never regarded or treated as an employee or worker by JJ's.

3.3 The additional assertion that the grievor was a 'casual worker' then puts this case into a challenging light. The employer seems to further allege that Mr Qiolevu was a casual worker whilst or when hired under a contract for service. In that regard, the employer is asserting that this grievance in whatever form should be dismissed with costs although it is not clear under what provisions of the ERP 2007, the employer is seeking this relief, (such as, say, pursuant to sections 28 and 29 of the ERP).

3.4 The grievor on the other hand, is stating that he cannot be a casual worker. This is because in a normal circumstance, as a casual worker, any worker should not be re-engaged within the 24 hour period immediately following the payment of his/her service. Hence, for there being no presumption of indefinite duration for a contract of service or for that matter for a daily contract to be terminated by according proper notice period under s29 of the ERP, the salient requirement in the ERP 2007 must be satisfied under its definition section (s4). Undoubtedly, this is a tricky situation where I have the task to determine the hours of work performed by the grievor in a day and his conditions for re-employment thereafter to understand whether or not it was a 'casual' employment. This is crucial in order to strike a balance between the definition of 'casual worker' and 'contract for service', which appears to be a simultaneous defence pleaded by the employer, in order to declare Mr Qiolevu an independent contractor and not a worker or employee which will then not allow his grievance to be within the realm of a 'employment grievance'. In doing so, I have to ensure that there were no misgivings on either side as to the understanding of the employment situation that in actual fact existed between Mr Qiolevu and JJ's.

3.5 Clearly the overall issue that has to be determined in the greater interest of the substantive matter is whether or not the grievor falls within the ambit of a 'worker' and thus suffices the definition of 'employment' under section 4 in the ERP in order to entitle him to have his 'employment grievance' heard in terms of the allegations of the unfair dismissal. This is a critical aspect that is not clearly put to the Tribunal, perhaps because both parties have misunderstood that without the grievor or Mr. Qiolevu sufficiently meeting the definition of a 'worker' under the ERP, there is really no employment grievance to be adjudicated.

3.6 Background facts indicate that a grievance of unfair dismissal was lodged by the grievor against the employer on 30th March 2011. In the Form ER1, the grievor alleges that "...that I have been unfairly dismissed for no valid reason at all...".

3.7 Mediation was attempted on 26 May 2011 but this was unsuccessful.

3.8 The case was referred to the ERT from the Mediation Unit pursuant to section 211(1)(k) of the ERP and therefore, before any substantive allegation of unfair dismissal can be heard and/or determined it is imperative to first overcome the two issues of law raised by the employer.

3.9 The Labour Officer on behalf of the grievor maintained that he was not a casual worker as he was re-engaged again following his 24 hour employment previous day and that arrangement suffices him to be deemed an employee or worker of JJ's under a contract of service. The Employer maintained in defence that Mr Qiolevu was an Independent Contractor and therefore his service was accorded under a contract for service. As I understand, the aspect of 'independent contractor' is either interchangeably used by the Employer to regard Mr. Qiolevu's service with JJ's in a 'casual worker' capacity or it could be that the employer is also labeling Mr Qiolevu as a 'casual worker' by mere reference to the reduced days of playing at JJ's, particularly towards the end of his service in 2011 when he was only performing for two nights. But, of course, without due regard to the actual definition of the term 'casual worker' in the ERP 2007.

3.10 Therefore, we must first know and understand who is a 'casual worker' as defined in the ERP and whether or not such class of worker is able to effectively use the protection and remedies if an 'employment grievance' in the form of an unfair dismissal comes about. However, at the forefront of issues is whether or not there was a contract for service; if so, when did it also deem the grievor's service that he provided to JJ's as a musician become casual employment in nature.

3.11 Because the ERP 2007 is the current statutory premise for any employment grievance to be heard and adjudicated, I do not wish to digress to other forms of authorities until and unless there is an absolute necessity. Let me thoroughly examine section 4 (Interpretation section) to better understand certain relevant concepts. Apart from the definition pertaining to contract for service, ERP explicitly provides the following definitions which are all relevant and applicable in understanding an 'employment' relationship and where does it fits in the overall scheme of a 'grievance':-

1. "worker means a person who is employed under a contract of service, and includes an apprentice, learner, domestic worker, part-time worker or casual worker;
   
2. employment grievance means a grievance that a worker, may have against the worker's employer or former employer because of the worker's claim that—
   

(a) the worker has been dismissed;

(b) .......(e)

3. contract of service means a written or oral contract, whether expressed or implied, to employ or to serve as a worker whether for a fixed or indefinite period, and includes a task, piecework or contract for service determined by the Tribunal as a contract of service;
   
4. oral contract means a contract of service which is not required to be made in writing, but which may be subsequently evidenced in writing;
   
5. employ in relation to an employer means to use the services of a person under a contract of service;
   
6. employer means a corporation, company, body of persons or individual by whom a worker is employed under a contract of service; and includes...
   
7. employment means the performance by a worker of a contract of service."
   
8. casual worker means a worker whose terms of engagement provide for the worker's payment at the end of each day's work and who is not re-engaged within the 24 hour period immediately following the payment;
   
9. day means— a period of 24 hours beginning and ending at midnight..."
   
10. contract period means the period of time or the number of days or hours to be worked for which expressly or by implication a contract of service is made;
    
11. dismissal means any termination of employment by an employer including those under section 33";
    

(Bold and underlining is my emphasis)

3.12 Whilst this is not an issue raised by either party, often the crucial elements of an "employment grievance" under the ERP assist to discharge any misgivings and this is a good starting point to examine the employment relationship alleged to have been breached or broken. In other words, there must be first a working relationship between the employer and the worker to allow a grievance to prevail within the ambit or confines of a contract of service. All the definitions I have laid out above makes reference to this, especially under the definition of "worker", "employer" and "employment".

3.13 In a normal scenario, clearly the definition of a 'worker' can include a casual worker for purposes of lodging an 'employment grievance' before the ERT. I presume this is now explicitly stated in the ERP to protect and avoid differential treatment against various classes of workers (such as apprentice, learner, domestic worker, part-time worker or casual worker).

3.14 Every class of worker is thus treated with same respect and protection under the ERP although I agree that there may be some areas such as reasonable notice period and termination methods that may differ, through either an express or implied contract of service. However, just because someone is a casual worker, it does not deny that claimant the protection of the ERP as enjoyed by a normal, permanent worker. For example, the meaning of 'employment grievance' where 'worker' includes a casual worker is entitled to seek redress against dismissal, sexual harassment or unfair discrimination as any other class of worker.

3.15 In the hotel industry, it is relevant to also refer to the Wages Council's LEGAL NOTICE NO. 40 where the Wages Regulation (Hotel and Catering Trades) Order 2011, pursuant to section 54(5) of the Employment Relations Promulgation 2007 was passed on 21 April 2011. In there too, same definition for casual worker is given and I note:-

"casual worker" means a worker whose terms of engagement provide for the worker's payment at the end of each day's work and who is not re-engaged within the 24 hour period immediately following the payment.

"day" means a continuous period of twenty four hours beginning at midnight on any day and ending at midnight the following day.

3.16 I will later discuss the different classes of workers classified in the hotel industry under the said Order, but for now I have to say that there can also be presumption of contract of service even if there is no written contract as is the case here. Clearly the meaning of "contract of service" includes "a written or oral contract, whether expressed or implied, to employ or to serve as a worker whether for a fixed or indefinite period, and includes a task, piecework or contract for service determined by the Tribunal as a contract of service".

3.17 In this regard, the Tribunal has powers to also ascertain any contract for service to be deemed a contract of service and this can only be done by assessing the overall merits and facts of the case as to the actual employment relationship that existed. I will come to this shortly.

3.18 Looking at the definition of 'contract period' under section 4 of the ERP states that: "the period of time or the number of days or hours to be worked for which expressly or by implication a contract of service is made". This means that by implication a casual worker is bound by a contract of service which is a 'daily contract' and this is confirmed by section 27(1)(b) – see below.

Presumption as to period of contract and termination of contract

27.—(1) In the absence of proof to the contrary and subject to subsection (2), a contract is deemed to be a contract for the period by reference to which wages are payable under the contract except that—

(a) the period must not be extended for more than one month; and

(b) the period in the case of a contract for the payment of wages at intervals of less than a day is deemed to be a daily contract.

3.19 To begin with, the claimant, even as a casual worker is entitled to have his grievance heard, albeit here he is raising his grievance as a permanent worker of JJ's for alleged unfair dismissal. This is his substantive claim in Form ER1. The employer is no doubt contesting that the claimant was not their permanent or any type of worker at any given time to be entitled to any remedies sought by the claimant under the provisions of the ERP because he was an independent contractor hired as a pianist for JJ's to play under a contract for service.

3.20 Clearly independent contractors are not included in the definition of a "worker" for obvious reasons and if we go by the strict definition of 'casual worker' under the ERP, the employer stands no chance of succeeding in its claim that Mr Qiolevu was a causal worker. From Mr Qiolevu's evidence (uncontested by the employer), his employment was re-enraged within the 24hour period following the first night of playing at JJ's. That is, he was employed immediately next day in the following manner:-

• In 2004 – 2007 – 6 nights from Monday to Saturday from 6.00pm to 10.00pm daily;
• In 2007 -2009 – reduced to 5 nights;
• In 2009 -2010 – reduced to 4 nights; and
• In 2011 – reduced to 2 nights.
  

3.21 In my view the employer has misconstrued what entails an employment situation where casual worker is concerned. Clearly failing the test here for declaring the grievor a 'casual worker' under the ERP only leaves the employer one other option to prove that he was an independent contractor pursuant to a contract for service. This is because in any employment related grievance brought to the ERT by the alleged parties (albeit here the employer is contesting outright that JJ's is not an employer of Mr Qiolevu), the employer still is required to bear the onus of proof, where accordingly, that onus must be adequately discharged to the ERT's satisfaction "on balance of probabilities" as is the standard in such cases. There is obviously some misunderstanding or confusion by the employer when evidently Mr Qiolevu cannot be classed a casual worker in any capacity as even in 2011 it is not clear whether or not the chain of employment was broken after the 24 hour period. Mr Qiolevu is saying it was not.

4.0 Final Determination

Was Mr Qiolevu an independent contractor? Was there a contract for service?

4.1 ERP 2007 is silent on the definition of contract for service and who is an independent contractor. Even the Wages Regulation (Hotel and Catering Trades) Order 2011 is silent although it attempts define various classes of hotel workers from a barman to cook, to kitchen-hand to clerk to even a general worker mentioned therein. But, of course, there is no definition of a musician or band, piano or keyboard players that either forms part of different categories of hotel workers employed in the industry or those to be employed as independent contractors or sub-contractors.

4.2 We know that in the ERP 2007, a worker means a person who is employed under a contract of service, and includes an apprentice, learner, domestic worker, part-time worker or casual worker and a contract for service can be declared a contract of service by the Tribunal although the tests to determine this are not stipulated in the ERP. In Halsbury's Laws of England 3rd Edn. Vol. 28 at p.22 it is stated:

"...the test which distinguishes an independent contractor from a servant or agent is the degree of control which the employer is entitled to exercise. An independent contractor is one who is not bound generally to obey to such orders as his employer may from time to time give, but is free to act as he thinks fit within the terms of his contract."

4.3 The above "control test" while it may not be a definitive criteria for the Tribunal to apply in order to determine whether or not Mr Qiolevu was a worker of JJ's, it does, however assist to assess the level of control which Mr Qiolevu had over the nature and method of his work, particularly in the absence of any written contract for service signed and executed between the parties.

4.4 For example, in the case Reddy v Samy [1982] FJCA 10; [1982] 28 FLR 69, the Court of Appeal had before it a written contract and it still deemed the arrangement between the parties to be an independent contract where it stated and I quote:-

"We have dealt with this agreement at greater length than may be thought necessary, but it is a fallacy to assume that every agreement or contract purports to be a contract of employment simply because the words "owner" and "cultivator" or "employer" and "employee" are used; such a document is not necessarily a contract of employment as these words do not affect the question as to the true construction of the agreement..." unquote.

4.5 In Reddy's case, the Court of Appeal had considered the case of Daly v Edwards 83 L.T. 548, where Lord Alverstone, CJ, had said that: "....you must look at the agreement as a whole..."

4.6 It is evident that there is no written agreement in this matter, but point to note is that the existence of a written agreement purporting to establish an independent contractor relationship or vice versa is not determinative. The "control test" is perhaps, one better way to assess the extent of Mr Qiolevu's involvement with JJ's in terms of whether or not the service rendered by Mr Qiolevu was under his control or JJ's control, management or supervision. Right to control, it would seem to suffice (as per Zujis v Wirth Brothers Pty Ltd [1955] HCA 73) but even where there is absence of control over work details, an employer-employee relationship will be found (as decided in the case of Yellow Cab Cooperative v workers Compensation Appeals Board (1991) 226 Cal. App.3d 1288) if:-

• The principle or employer retains pervasive control over the operation as a whole;
• The worker's duties are an integral part of the operation; and
• The nature of the work makes detailed control unnecessary
  

4.7 Indeed I agree with the employer's submission that the test applicable to determine independent contractors from employer/employee relations has been widely discussed by the Supreme Court in the decision of Hassan v Transport Workers Union [2006] CBV 0006U of 2005S where it highlighted the test of McCardie J in Performing Right Society Limited v Mitchell Booker (Palais De Danse) Limited [1924] 1KB 762 at 762-768 that:

"...the test to be generally applied lies in the nature and degree detailed control over the person alleged to be a servant... An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand..."

4.8 Simple definition from Wikipedia source states that "...an independent contractor is a natural person, business or corporation that provides goods or services to another entity under terms specified in a contract or within a verbal agreement. Unlike an employee, an independent contractor does not work regularly for an employer but works as and when required, during which time he or she may be subject to the law of agency and often paid on a freelance basis..."

4.9 Given the above test applications and definition laid out it then becomes easier to assess whether or not the service provided by Mr Qiolevu required a special skill as musicians are professional class of people; and whether or not he was performing his services as part of the regular business of JJ's during the official hours of work which can be evaluated by looking at the length of time for which the service was performed as well as the degree of permanence is that working relationship. Apart from this I believe the "economic reality test" is also crucial in assessing the nature of duties and task performed in return for payment of a wage or remuneration from JJ's. In a normal working relationship, a worker would agree to perform and complete tasks/duties allocated by the employer under the control/supervision/approval of his/her employer for which he/she will receive a set wage or salary at a rate that is fairly and equally provided to all staff for the same service.

4.10 To ascertain whether or not Mr Qiolevu was indeed a worker of JJ's, the Tribunal has noted the following crucial evidence submitted during the hearing:-

1. Mr Qiolevu was playing music for seven years for JJ's without a written contract. While he admitted that he had a written contract of service with Sheraton Hotel immediately after leaving that employment before joining JJ's, he did not request one instantly from JJ's when he agreed to play for JJ's. In fact, he admitted that JJ's had hired him as an independent contractor but he did not know what this arrangement meant. At one juncture during the hearing when asked why he was not wearing uniforms unlike other JJ's staff, he said because he was told that he was not a permanent staff. If someone is told something so clearly but he still did not understand the relationship then he should have asked or written to the employer to clarify or sought assistance or proper advice as he did after he was told not play for JJ's in 2011. Therefore, despite he had told the Tribunal that he had sought employment contract from JJ's management on various occasions within his 7 year stint with JJ's, there was no iota of evidence to show that he had objected to the treatment accorded by JJ's (either in writing or verbally), particularly as to the oral basis of understanding between the parties and naturally when told he was an independent contractor or not a permanent worker.
   
2. He also did not object to any verbal understanding whether it had to do with his FNPF entitlements or his taxes (PAYE) not being deducted; or his leave entitlements including annual, sick and/or any other leave that was accorded to other staff of JJ's also not being given to him. I am more concerned with the mandatory tax payments that must be submitted by every employer to the Tax authority. For instance, at the beginning in 2004, if he was earning $15 per hour (x4) per night for six nights, he was clearly in breach of this law, not to mention FNPF entitlements also being a statutory obligation of the employer that was not adhered to, if there are any merits in Mr Qiolevu's allegations. It amazes this Tribunal that for seven years Mr Qiolevu was able to agree to this treatment without raising any concerns or alarm to the employer or any of the said authorities and of course, allowing the employer to seemingly escape or evade the law. And this peculiar treatment was for one person when Mr Mazey told the ERT that other JJ's staff was treated as normal employees and their tax, FNPF and other entitlements were all in order. In fact there was no proof that the employer was in a practice of evading payment of statutory entitlements to their employees.
   

100. Further, Mr Qiolevu did not disagree that he was not a "master" of his own music. As JJ's told through their former Managing Director, Mr Qiolevu played whatever he liked and chose music from his own memory. In that regard, the Grievor was never dictated or told by JJ's what he should do or not do. In fact he was not assigned any task or given a music sheet to follow. As it would appear, he would outright refuse the management's request (not demands) for change in his usual music choice.
     

4. Mr Qiolevu was obviously treated differently from other regular JJ's staff in that he was allowed to consume alcohol while he played at JJ's whereas the regular employee were strictly prohibited to do the same as it was against the company terms and conditions of employment. He also admitted that he never wore uniform or was reprimanded or given warning letters for any misconduct even for an incident where he was drunk to the extent he slept on the premises that night.
   
5. Mr Qiolevu told the ERT that he was a professional musician and the rate of $15 per hour was his entitlement in the industry and I agree that Wages Regulation (Hotel and Catering Trades) Order 2011 does not set down a minimum wage rate for musicians in the hotel industry. There clearly appears to be a freedom of bargaining between such classes of professionals. That said, I have noted that JJ's rate for a full time musician is about $2.60 per hour for a normal 8 hours of work a day and this is almost five times less than what was received by Mr Qiolevu for his 6pm-10pm gig per night. He would get paid $60.00 (and later reduced to $50) for one night (I note he never complained about not getting the right payment or reduced rate) after completing his playing on the same night. Whereas in a full time position, in a week if $2.60 an hour for 8 hours is calculated, he would be earning something little over the mark of $100.00 per week. In comparison, even for 2 nights in the situation he was in 2011, he would be getting a payment of about $100.00. Because the method of payment was peculiar to what was provided to other staff, either paid weekly or fortnightly, which was also known to Mr Qiolevu, it proves that he was not a regular worker of JJ's.
   
6. Mr Qiolevu was also free to play at other places if he liked or to seek work other than what he did at JJ's, and which he did. He played at Sheraton Hotel when he was not playing at JJ's and also taught music. This is not a normal or usual arrangement between a contractual employer/employee relationship. Apart from 'control' aspect, no employer would want his/her employee to be overworked, exhausted or injured if they were engaged in contract of service. The main rationale behind this is the workmen compensation implications in case the worker is injured or dies whilst in course of employment. So, an employer would either explicitly refuse their contracted employees to engage in another trade, business or work when he/she is employed in one place, often within the terms and conditions of a written contract of service or the employee can do this, quite rarely though, via the consent and knowledge of the employer only. Here, JJ's is saying they never saw this to be an issue of great importance to them as they maintained that Mr Qiolevu was not their worker but an independent contractor. So he was free to work elsewhere in his spare time.
   

4.11 In this case, the employer has submitted that Mr Qiolevu ought to have been aware of the relationship he had with JJ's as an independent contractor as he had in the past signed written contracts of service with other hotels or employers he had played for before he had started playing for JJ's. According to the employer, this confirmed JJ's was the only party that he did not have a contract of employment as he was an independent contractor. Thus Mr Qiolevu knew or should have known that he was not an employee of JJ's from day one he began his service with JJ's. While I have said a written agreement is often not a definitive test to declare someone a worker or independent contractor respectively, it is nonetheless vital in this instance as Mr. Qiolevu had seven years to establish a contract of service if knew and experienced this in his past employment. If JJ's had still refused to provide him a contract, this would have constituted a breach of s37 of the ERP 2007, and I am in no doubt that Mr. Qiolevu would have come to the Labour Department much earlier than he did, if he had genuinely sought this from JJ's. This leads me to suspect in the affirmative that he knew that he was never a worker but an independent contractor.

4.12 From all these evidence, I am satisfied that the relationship between JJ's and Mr Qiolevu was that of an independent contractor. Mr Qiolevu was not a worker of JJ's but worked under a verbal contract for service. I have already dispelled any confusion that he was a casual worker too as to suffice such class of workers under the definition section of the ERP 2007, the employer clearly fails the test. That said, it still is clear to me that he was not a worker of JJ's in any capacity.

5.0 Decision and Orders

1. Mr Qiolevu, being the claimant (or purported grievor) is this matter is declared an independent contractor. As such he is not a worker of JJ's, the purported employer.
   
2. To that end, he is not entitled to bring a claim of unfair dismissal as Mr Qiolevu has failed to invoke the jurisdiction of this Tribunal to hear and adjudicate his substantive matter which is only accorded to a worker under the ERP. I am thus, dismissing the claim of Mr Qiolevu entirely on the basis that he is first not a worker within the ambit of the ERP and second, without being a worker he fails to invoke the jurisdiction of the ERT to hear this substantive application.
   
3. This preliminary application is allowed in favour of the employer and substantive matter is herewith dismissed.
   
4. Parties will bear their own costs.
   

DATED at Suva this 26th day of October 2012.

LEGAL TRIBUNAL