dissenting.
I concur in the dissent of Justice Bistline and would add several comments.
The majority opinion appears to be result-oriented, reaching its result of reversal only by ignoring several controlling facts which support the ruling of the Industrial Commission. Then the majority, seizing on the facts which it wishes to emphasize (while ignoring the others) takes over the fact-finding function of the commission.
When one cuts through the facade of legalisms, we have a circumstance where a major Idaho employer is using a subterfuge to deny workers benefits to which the law entitles them.
Exhibit 22 (Appendix A hereto) establishes that Simplot, to save himself $4.90, $21.10, or $13.10 per load of potatoes (depending upon distance from plant to warehouse) and $216.00 in employee benefits, deprives these men not only of unemployment compensation but also workers compensation and health and accident insurance.
It is argued that Alonzo Maldonado knew what he was doing and contracted at arms-length when he signed. Anyone who believes that should note the last page of the “Independent Contractor Agreement-Hog-gers” which is photocopied herein:
5. Nothing contained herein obligates Simplot to provide contractor with a minimum amount of work. Simplot has the right at its sole discretion to cancel this agreement and its obligations hereunder at any time, with or without prior notice, without liability whatsoever beyond its obligation to pay for work performed to date.
CONTRACTOR
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*770Not only did Alonzo misspell his own last name, when he printed (not signed) the agreement, but the paragraph 5 above his signature is a “jewel” which indicates the true nature of the sham which this court now endorses.
In Larsen v. State of Idaho, Department of Employment, 106 Idaho 382, 679 P.2d 659, this Court stated:
We uphold the Commission finding that appellant Larsen did not meet the requirement of subpart (B), i.e., show that the sprinkler pipe movers were “engaged in an independently established trade, occupation, profession or business.” Accordingly, we do not need to reach the question of “control or direction” presented by subpart (A).
The requirement of subpart (B) that the worker be engaged in an independent trade or business has been held to involve consideration of a number of factors: whether the worker owns major items of equipment; whether either party would be liable to the other for peremptory termination of the business relationship (These three considerations were enumerated in Swayne v. Department of Employment, 93 Idaho 101, 456 P.2d 268 (1969), and have been restated in subsequent decisions; see e.g., Totusek v. Department of Employment, 96 Idaho 699, 535 P.2d 672 (1975); see also Hammond v. Department of Employment, 94 Idaho 66, 480 p.2d 912 (1971) (holding that no one factor of the three is conclusive)). In Department of Employment v. Brown Brothers Const., 100 Idaho 479, 600 P.2d 783 (1979), we pointed out that the tests set out in Swayne were not the only applicable criteria for determining the nature of the working relationship. Id. at 482, 600 P.2d at 786. In fact, since the determination of whether the worker is “engaged in an independently established trade, occupation, profession or business” is “one which must be determined from all the facts and circumstances of the individual case,” National Trailer Convoy, Inc. v. Employment Security Agency, 83 Idaho 247, 251, 360 P.2d 994, 996 (1961), there must necessarily be taken into consideration a number of factors, depending upon the circumstances of each case. In National Trailer this Court set out several relevant factors, where they may be determined:
“ ‘Among the factors to be considered are whether the contractor is carrying on an independent business; whether the work is part of the employer’s general business; the nature and extent of the work; the skill required; the term and duration of the relationship; the right to assign the performance of the work to another; the power to terminate the relationship; the existence of a contract for the performance of a specified piece of work; the control and supervision of the work; the employer’s powers and duties with respect to the hiring, firing and payment of the contractor’s servants; the control of the premises, tools, appliances, material, and labor; and the mode, manner, and terms of payment. Ordinarily no one feature of the relationship is determinative, and all are taken into consideration in determining whether or not a person is an independent contractor.’ ” 83 Idaho at 252, 360 P.2d at 997.
Because it is for the factfinder to determine whether the worker has the status of an independent contractor (except in “the clearest of cases,” Fitzen v. Cream Top Dairy, 73 Idaho 210, 124, 249 P.2d 806, 809 (1952)), we look to the record to determine if the decision of the Industrial Commission is supported by substantial and competent evidence. We hold that it is. (Emphasis added). Id. at 383-84, 679 P.2d at 660-66.
In other words, the holding of Larsen and all the other cases therein cited is that the right to terminate at will without the employer becoming exposed to liability for wrongful termination of a contract is indie-*771ative of employee status. That right of termination “without liability whatsoever” is expressly provided in paragraph 5 of the subject contract.
Note that in Larsen, supra, we allowed the commission to be the factfinder.
Our courts and our legal system should perhaps be mindful of the common good resulting from a system of laws which enables the “captains of industry,” to make money, invest, and create jobs — one wonders if it is not possible to attain those goals without depriving the labor force of workmen’s compensation, unemployment compensation, and health and accident benefits.
Here the Industrial Commission ended its decision with the following Conclusion of Law which is correct and sustainable in all respects:
VII
No one test standing alone, except the right to control in the relationship of employee and employer and the lack of such right in that of principal and independent contractor, is wholly decisive. Gentler [Beutler] v. McGregor Triangle Company, 85 Idaho 415 [380 P.2d 1]. The Referee concludes that Simplot has retained the right to control or direct the contract loaders in the performance of their work under their contract of service and in fact. The contract loaders are not independently established. The services performed by the contract loaders are in employment covered by the Employment Security Law. The Referee recommends that the Commission affirm the decision of the Appeals Examiner by entering the following order.
BISTLINE, J., concurs.