dissenting.
I dissent from the opinion of the majority. I especially disagree with the majority’s treatment of appellant’s relationship with all of the respondents as if they were the same.
I conclude, based on the uncontroverted evidence, that Potter established an employer/employee relationship with John Bruton, Ed Kopfman, Beneke Construction, and John Lohden Construction as a matter of law.
The majority correctly notes that § 39-51-201(14), MCA, establishes a two-part test for determining whether someone rendering service for another is an independent contractor. It is not sufficient that petitioner has been or is engaged in an independent occupation or trade. He must also have been free from control over the performance of his services.
As pointed out by the majority, in determining whether there was freedom from control we consider four factors: “(1) direct evidence of right or exercise of control; (2) method of payment; (3) furnishing of equipment; and (4) right to fire.” Johnson v. Dept. of Labor & Industry (1989), 240 Mont. 288, 292, 783 P.2d 1355, 1358.
While it is true that the first factor was disputed by each of the alleged employers, it is not correct that the remaining factors were disputed. Plaintiff testified, and all four of the above employers *485agreed, that he was paid by the hour for his services, rather than based on a contract bid. In Solheim v. Tom Davis Ranch (1984), 208 Mont. 265, 273, 677 P.2d 1034, 1038, we held that:
Method of Payment. Payment on a time basis is strong evidence of employment status. Sharp [v. Hoerner Waldorf Corp. (1978)] 178 Mont. at 425, 584 P.2d at 1302; Larson, Section 44.33(a), p. 8-74. Payment on a completed project basis is consistent with, but not conclusive of, independent contract status. Larson, Section 44.33(c), p. 8-93.
Potter also testified that each of the above respondents provided him with some of the tools or equipment that were necessary for the work that he did for them. John Bruton acknowledged that he provided the radial arm saw, and may have provided a few other tools. Ed Kopfman did not discuss the issue of tools. Lisa Beneke did not discuss tools, and John Lohden did not bother to show up and testify about anything. Therefore, the third part of the four-part test for control is also undisputed with regard to these four respondents. We previously held in Solheim that:
According to Larson, when an employer furnishes valuable equipment, an employment relationship almost invariably exists, but the test does not cut in both directions with equal force. Proof showing a worker furnished his own equipment is not necessarily fatal to a finding of employee status. Larson, Section 44.34, pp. 8-95 - 8-104.
Solheim, 677 P.2d at 1038.
Finally, Potter testified that he could have terminated his employment with any of the above respondents at any time without incurring liability to them and that they could have terminated his services without incurring further liability to him. He pointed out, in fact, that both Lohden and Beneke did terminate his services while work remained to be done. I do not agree with the majority’s conclusion that there was substantial evidence to support the hearing officer’s finding that these four respondents did not have an absolute right to fire Potter. Lohden did not appear, and therefore, never answered the questions. Beneke, when asked, did not respond directly to the question. However, both Kopfman and Bruton testified unequivocally that they could have discharged Potter at any time without incurring liability and that he could have quit at any time without incurring liability. In Solheim, we pointed out that:
Larson states at Section 44.35 pp. 8-116 - 8-122.
*486“The power to fire ... is the power to control. The absolute right to terminate the relationship without liability is not consistent with the concept of independent contract, under which the contractor should have the legal right to complete the project contracted for and to treat any attempt to prevent completion as a breach of contract.” ...
“Examples could be multiplied in which most of the other indicia — method of payment, furnishing of equipment, skilled nature of the work, sometimes provision by the employee even of his own assistants and insurance, and not infrequently contractual disavowals of right of control and of employment relation — have pointed toward independent contractorship; yet the one element of right to fire, with its attendant implied right to control, has carried the day for employment relationship.
Solheim, 677 P.2d at 1039.
According to my reading of the record in this case, there was no evidence to support the hearing officer’s findings that three of the four factors considered in determining whether the respondents exercised control were not present. Based on my review of the record, the undisputed evidence establishes that three of the four factors were present. Therefore, as a matter of law, it must necessarily be concluded that at the times in question Potter was an employee of these four respondents. As we have previously held:
In Sharp v. Hoerner Waldorf Corp. (1978), 178 Mont. 419, 584 P.2d 1298, this Court developed a four-part test for determining whether or not an employer has the right of control: (1) direct evidence of right or exercise of control; (2) method of payment; (3) furnishing of equipment; and (4) right to fire. Sharp, 178 Mont. at 425, 584 P.2d at 1301-02. A finding that an individual is an independent contractor demands “ ‘a convincing accumulation of these and other tests,’ ” while a finding of employee status “ ‘can if necessary often be solidly proved on the strength of one of the four items.’ ” Sharp, 178 Mont. at 425, 584 P.2d at 1302 (quoting 1C A. Larson, Workmen’s Compensation Law § 44.10 at 8-35 (1952)).
Walling v. Hardy Construction (1991), 247 Mont. 441, 447, 807 P.2d 1335, 1338-39.
Since, by the undisputed evidence there was not a significant accumulation of these factors to support a finding of independent contract status, I conclude that the petitioner, Dave Potter, was an *487employee of the four respondents previously mentioned, and that the judgment of the District Court in their favor should be reversed.
I would affirm the District Court’s conclusion that as to Mort Arkava, Potter was an independent contractor.