Stripper case highlights law gap
The Employment Relations Authority recently issued its decision in a case brought by two former dancers at Calendar Girls Christchurch, Jessica Clifford and Tineill Hamilton-Redmond, against the establishment’s owner, Casino Bar Ltd.
The claim arose after Clifford and Hamilton-Redmond’s shared flat was broken into in September 2017. As a result of having to visit the police station to make a complaint, neither dancer reported to work that night.
This resulted in Clifford being told that she had been fired and having her pay docked. Hamilton-Redmond resigned around the same time after she was left off the roster. She also queried the whereabouts of money she believed was owed to her.
Unfortunately for the dancers, the authority decided they were independent contractors, and therefore refused to hear their claim of unjustified dismissal. In this regard the authority’s decision that they were not employees, meant that the relationship between them and Calendar Girls was outside the authority’s jurisdiction which is limited to employment matters.
The authority’s decision makes for interesting reading – particularly what it reveals about the strict set of rules that strippers working at Calendar Girls are required to abide by.
For example, the dancers must wear matching lingerie that implies ‘‘sexiness and sensuality’’, there are rules about certain clothing items having to be removed during a performance, and it is mandatory for dancers to work either Christmas Eve or New Year’s Eve.
Another significant aspect of the arrangement is an extensive fine system that applies where there are any breaches of Calendar Girls’ rules, including $2500 for working at another strip club or agency.
Ultimately though, a key factor that led to the authority’s conclusion that the dancers were not employees, was that they were able to choose their own look and choreograph their performance.
Although the authority accepted that the dancers were very much junior partners in their relationship with Calendar Girls, it considered the situation to be akin to a co-dependent commercial relationship.
The authority ruled that there were certain aspects of the relationship which could be viewed either as consistent with a contractor or an employee relationship. But on balance there were more factors consistent with the former. Interestingly, the authority noted that it had to make a ‘‘binary’’ choice between finding that the women were either contractors or employees, and there was nothing in between.
This highlights the current legal situation in New Zealand whereby employees have significant legal rights (such as sick leave), and contractors have very few.
In the case of independent contractors, their rights and entitlements depend on what they have agreed with the other party. That is not to say there are no benefits to being a contractor, and often it is financially lucrative. However, it is fair to say that from a legal perspective, independent contractors will generally be in a more vulnerable position than employees in terms of job security and their ability to access minimum entitlements.
This black and white distinction can give rise to unfairness, and arguably the case of Clifford and HamiltonRedmond would fall into this category.
It is cases like this that have led the Government to announce that it is reviewing the situation of workers who fall into a third category, of ‘‘dependent contractors’’ – somewhere between contractor and employee.
The plight of Clifford and Hamilton-Redmond – who had a relatively limited ability to negotiate reasonable working conditions with the strip club – highlights the need for recognition of this third category of worker.
Without the safety net that otherwise comes with employment status, the potential for these types of workers to be exploited is high. Unfortunately for Clifford and HamiltonRedmond, any change in the law in this area will come too late.
In New Zealand, employees have significant legal rights, and contractors have very few.