'Freelance' Coordinator, an Unpaid Non-Compete, and Missing Time Records

Substance governs, not the label. Kestrel set her daily hours, required the uniform, placed her under a supervisor in a named team and supplied the tools - the classic indicia of employment rather than of an independent business.

Dependence and substitution. She had no other clients, could not send a substitute, and was paid a fixed monthly sum against invoices she was instructed to issue. An invoice is a billing mechanism, not proof of a business; the instruction to issue them is itself evidence that the form was imposed for the employer's convenience.

Result. She was employed for the full four years, and the contractor label is a sham for employment-law purposes. The statutory notice scale for four years' service applies, so fifteen days was short; the dismissal had neither valid cause nor procedure, so she also claims the shortfall in notice pay and, if the forum provides it, an unfair-dismissal or severance remedy. Holiday pay and seniority-based entitlements accrue from day one.

Social insurance. The employer must register and pay; the instruction to 'handle it herself' is void and does not shift the duty. She can claim the employer's arrears plus interest before the social-security authority, or damages for loss of cover, and penalties may follow. Arrears contributions often carry a shorter limitation lookback than the contract period, so pursue this immediately.

Proof. Her case is documentary: the agreements, the invoices, the rota, the uniform issue and the messages assigning her to the team. Expect the argument that she was free to refuse work; the rota and the absence of refusals defeat it.

Probably not binding, and in any event it does not stop her accepting the offer until a court restrains her.

Consideration. A post-termination restraint on earning a living must be paid for. With no compensation clause, the usual approach is that the restraint is unenforceable at the employer's instance, or that the employee may elect to be released and claim the compensation the clause should have provided. An unpaid two-year restraint on a logistics coordinator is not reasonable merely because it is drafted as a covenant.

Scope. Even with payment, courts ask whether there is a legitimate protectable interest - trade secrets, customer connections, confidential pricing - and whether duration and geography are no wider than necessary. A coordinator with no client ownership, no commercial authority and no confidential pricing has little to protect; twenty-four months sits at or beyond the outer edge for a non-senior role.

Termination context. In several regimes a restraint cannot be enforced where the employer ended the contract without cause, or where the termination is attributable to the employer. A restructuring dismissal falls in that category, removing the legitimate basis for restraint.

Advice. She may accept the rival's offer. Warn her to keep no Kestrel documents, not to solicit former colleagues or clients, and to limit her new duties to what the role requires. If Kestrel seeks an injunction she defends on absence of consideration and overbreadth, and pleads that she never had access to confidential information. Expect a court, if it enforces anything, to read the clause down rather than strike it wholly - and to require payment for the enforced period.

Primary duty. An employer must keep records of hours worked. Kestrel kept none and says contractors are exempt - but the exemption depends on the classification, which fails; for an employee the record-keeping duty applies.

Her initial burden. She must make out a prima facie case: a credible, reasonably detailed account of when and how long she worked. Her own log is evidence and, supported by contemporaneous material - dispatch records, system log-ins, customer emails, the rota, overtime requests - is likely to be accepted. A bare reconstruction produced at the end of two years is much weaker.

Shift of burden. Once a prima facie case is made and the employer has failed in its record-keeping duty, the burden of disproving the hours shifts to Kestrel. It cannot discharge that burden by repeating that it kept no records, and an adverse inference may be drawn from the missing rota and any withheld routing data. Its best defence is to produce the routing system's logs, which probably exist even though no time register does.

Recovery. Overtime is paid at the statutory premium, and 260 hours across two years is unremarkable for a full-time coordinator; the claim is realistic if corroborated. Expect reduction for any period outside the limitation lookback and for hours she cannot tie to a specific date. She should also check the applicable collective agreement or contract for an overtime rate and claim the difference; if nothing was paid at all, she claims the full 260 hours at the premium. The 'contractor' defence fails for the same reasons as in the classification claim, and should be answered once rather than twice.