Your rights: Bridging the gaps in work contracts

By CHRIS PATTERSON

Q. When is a contractor an employee? As a contractor, can my employer expect me to work each day from their offices when there is no mention of this in my contract? I have a work station and a phone, work 20 hours a week from their premises, yet receive no benefits such as sick pay/holiday pay or paternity leave, and I have no job security.

What happens with regard to ACC if I fall down the lift shaft?

A. It depends on the nature of the relationship. The starting point is what you and your employer or principal have agreed, and your contract should specify that what you have agreed is the real nature of your relationship.

However, the Employment Relations Authority and Employment Court also consider factors such as whether you have control over when, how or where you work; whether you stand to make a profit or a loss; whether you are part of the company's business or ancillary to it; and whether a person would regard you as being in business for yourself.

If you cannot agree your status you could seek a declaration from the authority. If it declared that the real nature of the relationship was one of employment you would be entitled to recover holiday pay, be reimbursed for unpaid sick leave and receive all the protections of the Employment Relations Act.

However, the Inland Revenue may wish to discuss with you and/or your employer the taxation consequences of being an employee.

You can claim compensation from ACC in the event of a work-related accident - the only difference is who pays what levies.

It would be best to determine the real nature of your relationship sooner rather than later.

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Q. I started work for my employer in September 2001 on a six-month, fixed-term contract, which had a one-month notice period from both parties. That was extended until June last year under the same terms.

At the end of June I was told I would be offered a one-year contract, on the same terms, to work on a major IT project. This contract has never been presented and since the end of June last year I have been working without a contract, but have continued to be paid on the same terms as before.

The IT project I am working on goes live soon and it is now likely that l will be needed only until the end of November.

I believe that as my last fixed-term contract expired more than a year ago there is now no contract that my employer can "choose" not to renew.

I have by default become an employee and if I am not needed beyond the end of November my employer will have to make me redundant. Am I correct?

I have made it clear that I wish to stay with the company and that I am keen to discuss any opportunities that exist.

A. You are correct that if your fixed-term agreement has expired but your employer has kept you on your status will be one of permanent employment. Your employer cannot rely on the expired fixed term as causing your employment to end and it can be terminated only on justifiable grounds.

It appears that your position is about to come to an end and may be redundant, but that does not necessarily mean that you are redundant.

Your employer is obliged to consider whether you can be redeployed within the company and to discuss potential opportunities. The law requires employers to explore all reasonable avenues before ending someone's employment simply because their position has become superfluous to requirements.

You would have a legitimate cause for concern if you were not at least considered for a suitable vacancy. While your employer is entitled to employ the best candidate, in some situations you should be given preference over external applicants. I suggest you keep making it clear that you wish to stay and are keen to discuss opportunities.

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