| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 1/06 |
| Hearing date | 21 Nov 2005 |
| Determination date | 05 January 2006 |
| Member | R A Monaghan |
| Representation | K Nicolson ; A Clemow |
| Location | Auckland |
| Parties | Faithfull v Morris and Morris Ltd |
| Summary | UNJUSTIFIED DISMISSAL - JURISDICTION - Applicant wished to purchase respondent's funeral director business - Parties agreed that applicant would work in business for four month period prior to purchase so she could learn about business and both parties could assess whether their business relationship would be satisfactory - Agreed that arrangement would be treated as employment agreement - Parties agreed to extension of one more month - Within a few days of agreeing to extension respondent decided not to proceed - Applicant given letter terminating agreement and paid up until end date of extension - Respondent alleged applicant was independent contractor - No dispute parties agreed relationship would be one of employment - Way relationship operated in practice did not make relationship one of principal and contractor - Unusual freedom from control applicant was given was deliberate - Applicant was employee - Applicant alleged her employment was probationary - Applicant's position supernumerary - Possibility of ongoing employment relationship outside contemplation of parties - True nature of relationship was fixed term - Authority satisfied both parties agreed employment relationship would end on specified date, and that respondent had genuine reasons based on reasonable grounds for fixed term - Employment terminated summarily rather than on agreed date - Applicant should have been given opportunity to respond to concerns before decision made about continuing employment - Unjustified dismissal - Remedies - Applicant paid until agreed date of termination so no further lost remuneration payable - Applicant's costs of moving to respondent's location were not losses that flowed from personal grievance - Could only be compensated for effect of sudden, unexplained early termination and not injury which flowed from fact that transaction did not proceed - COUNTERCLAIM - BREACH OF CONTRACT - Applicant kicked door as she left and damaged it - Payment of damages appropriate for repair of door - Funeral director |
| Result | Application granted ; Compensation for humiliation ($3,000) ; Counterclaim granted ; Damages in favour of respondent ($1,133.64) ; Costs reserved |
| Statutes | ERA s66;ERA s66(1);ERA s67 |
| Cases Cited | NZ (with exceptions) Food Processing etc IUOW v Unilever NZ Ltd [1990] 1 NZILR 35 |
| Number of Pages | 6 |
| PDF File Link: | aa 1_06.pdf [pdf 38 KB] |