Employee or independent contractor?

Jumbo the elephant’s contribution to the question of employee or independent contractor

Whether a particular person is an employee or otherwise (for example an independent contractor) is a question which commonly comes before the Employment Relations Authority – what is uncommon however, is when that question is answered by examining the relationship between a man and his elephant.

Tony Ratcliffe was the proprietor of Whirling Bros Circus, showing many exotic animals including Jumbo the African elephant which he had purchased from Honolulu Zoo in Hawaii when Jumbo was 3 years old, around 1976. Mr Ratcliffe cared for Jumbo from then on, building a close relationship with her over approximately the next 30 years.

Around 2007, Mr Ratcliffe decided to retire from circus ownership – he had already retired most of his circus animals (either to animal sanctuaries or zoos), however his close bond with Jumbo, built over 30 years of love and care for her, prevented Mr Ratcliffe from selling her in such a way that he would lose contact with her.

In late 2007 Mr Ratcliffe began discussions with Mr Weber (the proprietor of the Australian Loritz Circus) which planned to tour New Zealand over a 2 year period until 2009. Mr Ratcliffe eventually sold Jumbo to Mr Weber for $70,000 in January 2008, taking on a position touring with the circus and caring for Jumbo.

Mr Ratcliffe continued touring with the circus and Jumbo until unfortunately the relationship between Mr Ratcliffe and the Loritz Circus broke down in late 2009. On 21 November 2009 Mr Ratcliffe loaded Jumbo into his trailer after a feeding event with the public and was told by the Loritz Circus that the next stop was Tauranga Racecourse. Mr Ratcliffe proceeded to Tauranga Racecourse arriving the next evening, however was surprised to find nobody there. Shortly afterwards, a member of the Loritz Circus arrived and informed Mr Ratcliffe that Jumbo had been “lost”, advising him to wait at the racecourse while she attempted to find the trailer containing Jumbo. Approximately 10 minutes later Mr Weber phoned Mr Ratcliffe dismissing him, with Mr Weber stating he would pay Mr Ratcliffe his final pay and finish him up, and that the circus would find another elephant handler.

Mr Ratcliffe heard nothing further until the following Monday when he read in the newspaper Jumbo had been given to the NZRSPCA.

Mr Ratcliffe took a claim against Mr Weber in the Employment Relations Authority – there were 2 questions before the Tribunal:

1. was Mr Ratcliffe and employee? and
2. if so, was he unjustifiably dismissed.

In determining whether he was an employee or an independent contractor, there was no contract which indicated one way or the other. Instead, the Authority looked to the true nature of the relationship, applying the 3 tests set out in Bryson v Three Foot Six Limited:

1. The control test – how much control the company exercises over the worker and their work (who decides what work is done and how it is done). In this regard the Authority determined Mr Weber controlled and decided what work Mr Ratcliffe did with Jumbo, and he was sufficiently controlled by the circus for this factor to point towards an employment relationship.
2. The integration test – how integral and integrated the worker is with the business. In this regard the Authority noted Mr Ratcliffe participated in the performances of the circus and in the public feeding programme, finding he was sufficiently integrated with the circus for this factor to point towards a relationship of employment.
3. The fundemental (or economic reality) test – whether the worker is in business on their own account. In this regard the Authority considered several facts including that the circus provided necessary equipment for Mr Ratcliffe, that he was reimbursed for expenses, and was deregistered from GST. The Authority considered these factors to point towards an employment relationship.

The Authority found Mr Ratcliffe was an employee and not an independent contractor – it then turned to whether he had been unjustifiably dismissed.

In this regard the Authority found Mr Ratcliffe had been unjustifiably dismissed, as among other things he had not been informed of any specific allegation of misconduct, provided no opportunity to explain, and that his dismissal was a decision which has been predetermined. Mr Ratcliffe was awarded lost wages in the amount of $3,000 net plus interest, and payment for annual leave and public holidays throughout the course of his employment totalling $13,252.74.

Finally, the Authority turned to whether Mr Ratcliffe was entitled to compensation for hurt, humiliation and injury to feelings.

In this regard the Authority noted Mr Ratcliffe had a long 30 year relationship with Jumbo which was very close – Mr Ratcliffe’s care of Jumbo was extremely intensive, being described as “like taking care of a baby but this baby did not grow up”. Mr Ratcliffe had recognised he was becoming too old to maintain this level of care for Jumbo, however planned for a retirement of both himself and Jumbo in which he could continue to care for her on a reduced basis and maintain proximity to her.

The Authority found it reasonable to conclude that when Mr Ratcliffe was sent to Tauranga racecourse the plan to give Jumbo to the NZRSPCA had already been formed by Mr Weber, and sending Mr Ratcliffe to the racecourse had been a deliberate ploy to ensure Mr Ratcliffe was not present at the time of the transfer. Mr Ratcliffe was shocked to be told that Jumbo had been lost (which the Authority considered reasonable to conclude was a deliberate lie), and was extremely upset, not only by the fact of his unjustified dismissal but the circumstances – being denied the opportunity to be present and say goodbye to Jumbo. Mr Ratcliffe was additionally distressed by only finding out after the fact and of his own volution what had happened to Jumbo.

The Authority determined that a fair and reasonable employer would have informed an employee about the welfare of the animal in their care, especially given the special nature of that relationship, and in particular would have involved that employee in the plans to move that animal out of their ownership before doing so. The Authority found Mr Weber’s actions to be a significant breach of good faith and awarded Mr Ratcliffe $10,000 compensation.

After being given to the NZRSPCA, Jumbo was re-named ‘Mila’ and temporarily retired to the Franklin Zoo south of Auckland. In a tragic course of events, Jumbo killed a zookeeper (Dr Helen Schofield) in 2012 – an investigation determined Jumbo became frightened (possibly by an electric shock) and picked up Dr Schofield with her trunk, crushing her. Dr Schofield had entered Jumbo’s enclosure out of concern for her in an attempt to calm her down. Jumbo was then transferred to the San Diego zoo before passing away in 2017 at age 44.

 

If you have any questions or queries in relation to this topic (not the elephant), please get in touch with the Watermark team directly. We are happy to advise you.

Jonathan Charlton

Solicitor