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The thin line between worker and volunteer

14 September 2016

Volunteers are the lifeblood of many organisations in our country. Volunteering is often admirable, but when does the use of volunteers cross the line between valid engagement and unacceptable exploitation?

When is a person a volunteer and when are they in reality an employee?

Kamaljeet Kaur came to New Zealand on a student visa allowing her to work for up to 20 hours a week. Kaur applied for a job as a housekeeper with Alpine Motor Inn & Café in Lewis Pass.

When Kaur arrived at the premises, the motor inn’s director Jerry Hohneck was surprised to find Kaur did not have a full work visa. The motor inn had intended to employ her full-time.

Hohneck claimed that he told Kaur there was no position for her and that he needed to abide by immigration rules.

Despite this, Kaur was allowed to live at the motor inn, was provided food and evidently began to perform services. Kaur received no pay for more than three months of work. The motor inn said that Kaur was a volunteer until she got a full work visa.

Kaur worked, the motor inn claimed, because she was bored. Not surprisingly, those claims were rejected by the Employment Relations Authority.

The authority held that Kaur had expected to be rewarded for her work, and she had in fact been rewarded with food and accommodation.

The authority looked at the real nature of the relationship and concluded that Kaur was an employee.

The motor inn was ordered to pay nearly $20,000 in unpaid wages and penalties.

In imposing the penalties the Authority commented that “a deliberate failure to pay an employee wages for work carried out is exploitation, and is serious.”

The distinction between an employee and a volunteer will typically be straightforward. An employee comes to work expecting to be paid for their time.

A volunteer expects no such reward, and in fact receives none. But what happens if the parties have a different view of whether the worker is an employee or not? What is considered to be “reward” for performing work?

Ray Brook was the Registrar of the New Zealand Dance and Dancesport Council.

Brook had a falling out with the council after it became concerned with his use of funds. Through a process server Brook received a letter that told him the relationship had come to an end. He claimed unjustified dismissal.

The Employment Court found that Brook didn’t expect to be rewarded for what he did, and was not rewarded. He did receive payment, but it was reimbursement of his expenses and a token of appreciation for his efforts by way of an honorarium. Brook expected to receive these payments from the outset, but the payment and its amount were not causally linked to the services he performed.

The court referred to the volunteer definition set out in the Employment Relations Act.

In considering what “reward for work” means, the court said “it is doubtful that something in the nature of a handshake or a bunch of flowers was within Parliament’s contemplation”.

As a volunteer, Brook was not an employee and could not succeed in a claim for unjustified dismissal.

Both cases show a lack of clarity on the employer’s part. The employers and the “workers” had different expectations.

The lesson to be learnt? Have a written agreement in advance which sets out with precision the employer’s expectations and what is agreed. Not only is this a legal requirement where the worker is an employee, it is good business practice when they are not.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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