Here, it was argued that where a person was in business on their own account ( and at their own risk ), they would be under a contract for services, whilst otherwise they would be under a contract of service.
42.
But a perusal of the judgments delivered by the learned judges in " Lumley v . Gye " shews that in their opinion at any rate it was vital to the plaintiffs'case that there was a subsisting contract of service.
43.
:As an example of liability in contract, the law in most of Canada provides that an infant is not bound by the contracts he or she enters into except for the purchase of necessaries and for beneficial contracts of service.
44.
A ship s master, a chauffeur, and a reporter on the staff of a newspaper are all employed under a contract of service; but a ship s pilot, a taxi-man, and a newspaper contributor are employed under a contract for services.
45.
If the decision of the industrial tribunal is to be understood in the sense apparently given it by the appeal tribunal, there was a misdirection in law, for there could have been no contract of service, and perhaps no contract at all.
46.
In the very decisions cited by Lord Collins in England the award of damages in respect of breach of the contract of service seems to have been improperly inflated by allowances made for false charges, even a charge of embezzlement.
47.
Section 295 contains the meaning of " employee " as a person with a " contract of service " and section 296 states a " worker " is someone with a contract to personally perform work who is not a professional client.
48.
If the rationale behind the automatic theory is both the unavailability of specific performance and the inability to claim the contractual remuneration rather than damages, why should it not extend to contracts of services to which the law attaches those same two consequences?
49.
The issue is whether the individual assignment worked by Mr McMeechan for Sutcliffe Caterers for a period of four days during January 1992, in respect of which he claims his unpaid remuneration, did or did not amount to a contract of service in its own right.
50.
If the law as to contracts of service is that there must be mutual obligations which were not found by the industrial tribunal or cannot be inferred from the evidence, then the industrial tribunal misdirected itself in law and its determination can and should be set aside.
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