29 October 2010

Facts of Bryson vs Three Foot Six Ltd

Have a read of the Bryson vs Three Foot Six Supreme Court case, also a PDF.
Under Section 6 of the Employment Relations Act 2000, someone can ask the courts to find that he/she is in fact an employee, despite the wishes of the film production company/"employer". In other words, this is a "duck test".

The Bryson facts were;
  • Bryson worked for Weta workshops as a miniature model maker for several months on regular hours and on an hourly rate ($18 an hour and from 8:00am to 5:30pm)

  • there was no written contract or letter of appointment

  • he transferred to Three Foot Six, the LOTR film production company, on a verbal basis

  • he got 3 weeks specific training for the new role

  • his partner had a baby, so he asked and they agreed he could stay on 8 to 5:30 instead of moving to 7:30am to 6pm which was normal for 3F6

  • after several more months, everyone on LOTR work is issued with a 'crew memo' which read exactly like an employment contract except it states "YOU ARE A CONTRACTOR"

  • Bryson is issued pay slips from 3F6 that are titled "Invoice"

  • Filming of LOTR finishes, 3F6 tells Bryson his services are no longer required and no redundancy is payable as he was a contractor (baby? partner? bad timing? eh)

Bryson asks the Employment Tribunal to make a finding of fact that he is an employee so he can allege unjustifiable dismissal. The Employment Tribunal agrees with 3F6 that he is a contractor. Bryson appeals this 'finding of facts' to the Employment Court, and Judge Shaw rehears the evidence and finds that Bryson is an employee of 3F6 (This is just like the Environment Court hearing an appeal of a resource consent. It rehears the evidence and 're-makes' the council's decision.) 3F6 appeal on 'points of law' to the Court of Appeal, and convinces the majority of the Court of Appeal judges that Judge Shaw made 'an error of law' in her judgment (This is because the C of A cannot re-make the Employment Court's decision, it can only review the procedures followed for errors of law).

The Supreme Court decides that there were no 'errors of law' in the Employment Court decision. Judge Shaw considered all relevant matters in the Section 6 of the Employment Relations Act 2000. Therefore the Employment Court decision, that Bryson is, on the facts of his case, an employee of 3F6, stands.

This went through the various tribunals between 2002 and 2005. It is not very plausible to state that this area of law 'lacks clarity' or that this decision is a threat to the production of The Hobbit film.

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