| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2015] NZERA Wellington 33 |
| Hearing date | 11 Nov 2014 |
| Determination date | 31 March 2015 |
| Member | Trish MacKinnon |
| Representation | L Inger ; M Lawson, R Balasingam |
| Parties | Porse Education and Training Ltd v Roydhouse |
| Summary | JURISDICTION - Whether respondent in employment relationship with applicant - Whether parties in business partnership - BREACH OF CONTRACT - Applicant sought damages for respondent's breach of employment agreement (EA") - Failure to give notice - PENALTY - GOOD FAITH - Applicant sought penalty for respondent's breach of good faith - COUNTERCLAIM - BREACH OF CONTRACT - Respondent sought damages for applicant's breach of EA - COUNTERCLAIM - ARREARS OF HOLIDAY PAY - Respondent sought arrears of holiday pay - National equine coach" |
| Abstract | AUTHORITY FOUND -;JURISDICTION: Respondent saw employment relationship as more than convenient vehicle for achieving dream of equestrian unit standards and parties had common intention to enter employment relationship. Provisions in main part of EA indicated conventional employment relationship but schedules to EA changed relationship into one with commercial elements. No definitive finding possible on basis of EA alone. Applicant exercised minimal control over way respondent conducted work. Control test inconclusive although favoured relationship other than employment. Applicant provided location for respondent's equine operations and many tools required. Respondent's role important in development of intended equine education. Respondent integral part of applicant's business. Respondent ran own business but fees collected went to applicant and respondent's remuneration remained static regardless of number of clients. Respondent not in business on own account. Respondent employee.;BREACH OF CONTRACT: Respondent breached EA by not giving required notice of resignation. EA only allowed applicant not to pay respondent in lieu if required notice not given and did not allow applicant to seek payment of salary as damages. Applicant made decision to use website of respondent's company for bookings, tuition and other equestrian services. Respondent not responsible for applicant's losses when website reclaimed for respondent's business. Respondent's reasons for advising clients of departure from applicant genuine and no evidence clients asked to remove horses from applicant's property. Reasonable for respondent to remove material identifying company with applicant. Any development of respondent's company's website by applicant condition of EA and no provision that resulting enhancements to be removed once employment ended. No misappropriation of applicant's property. No evidence reimbursement of respondent's course fees came with conditions. No damages.;PENALTY - GOOD FAITH: Respondent responsive and communicative during final period of relationship and sought meeting with applicant actively. Respondent did not mislead applicant by saying nothing to worry about. No breach of good faith for respondent to resign before attending mediation. No penalty.;COUNTERCLAIM - BREACH OF CONTRACT: Reasonable for applicant to monitor respondent's work hours by requesting timesheets and workplans given respondent's complaints about working long hours. Both parties willing to meet and no criticism appropriate for applicant's wish to only meet in mediation given deterioration in relationship. Pressure applied to respondent to become contractor unhelpful but did not breach duty of trust and confidence. No breach of contract.;COUNTERCLAIM - ARREARS OF HOLIDAY PAY: Insufficient evidence to determine claim. Decision reserved pending further evidence and submissions. |
| Result | Application granted (jurisdiction) ; Applications dismissed (breach of contract)(penalty - good faith)(counterclaim - breach of contract) ; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | ERA;ERA s4A;ERA s6(3);Holidays Act 2003 s83;Partnership Act 1908 |
| Cases Cited | Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721;Ryan v Mason [2011] 2 NZLR 791 (HC) |
| Number of Pages | 23 |
| PDF File Link: | 2015_NZERA_Wellington_33.pdf [pdf 235 KB] |