| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 45/04 |
| Hearing date | 18 Feb 2004 |
| Determination date | 20 April 2004 |
| Member | P Cheyne |
| Representation | M Hanifin ; J Enright |
| Location | Christchurch |
| Parties | Anderson v Kitchen Studio |
| Summary | UNJUSTIFIED DISMISSAL - Whether fixed term contract - Applicant began work for respondent on agreed rate of pay until specified date - Discussions concerning work for respondent after specified date on retainer plus commission basis - Respondent advised applicant one day before specified date that employment to end on specified date - Alleged fixed term contract - Alleged discussions concerning future terms of engagement specified applicant would be independent contractor - No distinction communicated to applicant concerning intended legal status before and after specified date - Applicant not advised that employment would terminate on specified date or reasons for such termination - Requirements under s66 Employment Relations Act 2000 for formation of valid fixed term employment not made out - Applicant permanently employed with change to method of calculating pay from specified date onwards - Applicant unjustifiably dismissed - Remedies - Impossible to calculate lost commission - Calculation of lost remuneration on basis of retainer only amounted to less than minimum wage - Lost remuneration to be calculated on basis of adult minimum wage - ARREARS OF HOLIDAY PAY - Entitled to payment for arrears of statutory holiday pay - No failure to mitigate loss - Search of respondent's office not later discovered misconduct sufficient to justify reduction in remedies - PENALTY - Failure to record employment agreement in writing contributed to problem - Penalty for breach of s64(2) ERA payable to crown - Sales consultant |
| Result | Application granted ; Reimbursement of lost wages (Quantum to be calculated) ; Arrears of statutory holiday pay ($400); Compensation for humiliation etc ($6,000) ; Penalty payable to crown ($1,000) ; Costs reserved |
| Statutes | ERA s64;ERA s64(2);ERA s64(4);ERA s66 |
| Cases Cited | Ark Aviation v Newton [2001] ERNZ 133 |
| Number of Pages | 6 |
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