Three Foot Six Ltd v Bryson - [2004] NZCA 276

IN THE COURT OF APPEAL OF NEW ZEALAND
CA246/03
BETWEENTHREE FOOT SIX LIMITED

Appellant

ANDJAMES BRYSON

Respondent

Hearing:12 August 2004

Bench:McGrath J
William Young J
O'Regan J
Appearances: P M Muir and T J Dobson for Appellant

M E Gould for Respondent

Judgment:12 November 2004

JUDGMENT OF THE COURT

The appeal is allowed. The decision of the Employment Relations Authority is restored. In respect of this appeal, the appellant is awarded costs of $6,000 together with disbursements (including travelling and accommodation expenses if any) to be agreed between the parties and in default of agreement to be fixed by the Registrar. Costs in the Employment Court are to be determined in that Court.
REASONS
McGrath J (dissenting)  [1]
William Young and O’Regan JJ  [36]
McGRATH J
Introduction
[1]       This is an appeal brought by a film production company against a judgment of the Employment Court, delivered by Judge Shaw, which held that the respondent was employed by the appellant between 16 October 2000 and 30 September 2001 under a contract of service. The sole issue in the appeal is whether the respondent was an “employee” during the relevant period within the meaning of that term under s 6 of the 2000 Act.
[2]       Three Foot Six Limited was established to administer the production of The Lord of the Rings film trilogy in 1999. The respondent joined it in April 2000, on secondment from Weta Workshop Ltd, to work on the production of the films. Initially he was a temporary model maker but he later became a model technician. He entered into a written contract with the appellant, which was described as a “crew deal memo”, on 30 October 2000. This governed the terms of his engagement from 16 October 2000 until he was made redundant on 30 September 2001. The crew deal memo stipulated that the respondent was engaged by the appellant as an independent contractor and not as its employee.
[3]       Following the termination of his employment the respondent attempted to bring a personal grievance proceeding before the Employment Relations Authority under the Employment Relations Act 2000. The appellant raised the preliminary point that the respondent was not an employee but a contractor, who was unable to bring a personal grievance proceeding under the 2000 Act. The Authority upheld this contention which precluded the respondent from proceeding with his grievance. He appealed to the Employment Court against the Authority’s decision, successfully. The present further appeal is brought, with this Court’s leave, against the Employment Court’s decision.
[4]       I adopt the statement of the background facts set out in the judgment of William Young and O’Regan JJ, which is the judgment of the majority of the Court. That judgment decides that the respondent was an independent contractor, and not an employee, and accordingly allows the appeal. I have reached a different conclusion as to the status of the respondent during the period concerned and in this judgment I set out my reasons for doing so.
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Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Three Foot Six Ltd v Bryson

Details

AGLC: Three Foot Six Ltd v Bryson [2004] NZCA 276
Case: [2004] NZCA 276
Decision Date: 12 November 2004

CaseChat Overview and Summary

Three Foot Six Limited, a film production company, appealed against a decision of the Employment Court that Mr James Bryson, who worked for the company, was an employee within the meaning of s 6 of the Employment Relations Act 2000. The Court of Appeal held that the appeal should be allowed and that Mr Bryson was an independent contractor, not an employee. The Court found that the real nature of the relationship between Mr Bryson and Three Foot Six Limited was that of independent contractor, in accordance with both the contract they signed and the almost invariable practice in the film industry. The Court of Appeal held that the Employment Court erred in its interpretation of s 6 of the Employment Relations Act, did not apply established principles in determining Mr Bryson's employment status and did not take adequate account of industry practice. The Court found that the contract between Mr Bryson and Three Foot Six Limited was sufficiently real to be recognised by the tax system and that industry context was directly relevant to the “real nature of the relationship” between the parties.

Orders