Pearson v. Industrial Commission , 252 Ill. Dec. 817 ( 2001 )

JUSTICE HOLDRIDGE,

dissenting:

I would find that the Commission erred in holding that no employer/employee relationship existed. I therefore respectfully dissent.

As the majority correctly notes, the key issue in this matter is whether an oral contract for hire can be implied from undisputed facts in the record. I would find that the record supports the finding of a contractual relationship and the Commission’s determination to the contrary is clearly erroneous.

Whether an employer/employee relationship exists in any matter is a difficult question. There can be no hard and fast rule for making such a determination and the facts of each case are the only guides. Bauer v. Industrial Comm’n, 51 Ill. 2d 169, 171 (1972). As the court noted in Bauer:

“ ‘No single facet of the relationship between the parties is determinative, but many factors, such as the right to control the manner in which the work is done, the method of payment, the right to discharge, the skill required in the work to be done, and the furnishing of tools, materials or equipment have evidentiary value and must be considered. [Citation.] Of these factors, the right to control the work is perhaps the most important single factor in determining the relation [citation], inasmuch as an employee is at all times subject to the control and supervision of his employer, whereas an independent contractor represents the will of the owner only as to the result and not as to the means by which it was accomplished. [Citations].’ ” Bauer, 51 Ill. 2d at 171-72, quoting Coontz v. Industrial Comm’n, 19 Ill. 2d 574, 577-78 (1960).

In applying these principles to the facts in the instant matter, it is abundantly clear that the claimant’s actions in fighting the fire were under the control of the Fire Protection District (the District). The record shows that, although claimant arrived at the fire before any Fire Protection District personnel, he made no attempts to put the fire out himself. He waited for the firefighters to do the job of controlling the fire. Even after the firefighters arrived and began to make efforts to control the fire, claimant made no efforts on his own to control the fire. At some point after the firefighters arrived and began the task of controlling the fire, claimant offered his tractor and disk to assist in putting out the fire. He was then asked by Terry Nelson, who was in charge of the firefighting operation at the scene, to provide assistance by disking a firebreak to stop the further spread of the fire.

It is noteworthy that prior to authorizing claimant to disk the firebreak, Nelson sought authorization from Assistant Fire Chief Donald McDowell. McDowell specifically authorized claimant’s assistance in fighting the fire, instructing Nelson to have claimant go around the fire with his tractor and disk. Claimant received further instruction on exactly where in the field he was supposed to begin his disking. It is also noteworthy that McDowell believed he could have ordered claimant to stop disking the firebreak at any time.

From this evidence, it is clearly apparent that claimant’s actions in fighting the fire were controlled by the District. To find otherwise, i.e., that claimant was fighting the fire independent of the firefighting actions of the District, would be against the manifest weight of the evidence. It is also clearly apparent that the District retained the authority to discharge claimant from the duties he had undertaken at Nelson’s request.

In finding that claimant was not an employee, the majority relied heavily on the fact that claimant received no pay or other remuneration for his services. However, in light of the fact that the other firefighters received a total compensation of $8 each, I believe that the majority gives far too much weight to this single factor.

As I would find that the Commission’s finding that claimant was not an employee of the District is against the manifest weight of the evidence, I would not reach the issue of whether the emergency doctrine applies.