| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 137/06 |
| Hearing date | 27 Feb 2006 |
| Determination date | 26 April 2006 |
| Member | D King |
| Representation | GJ Hurlimann (in person) ; R France |
| Location | Auckland |
| Parties | Hurlimann v Auckland College of Natural Medicine Ltd |
| Summary | UNJUSTIFIED DISMISSAL - JURISDICTION - Whether independent contractor or employee - Only factor against applicant being employee was that he submitted invoices - Applicant employee - Applicant required to prepare teaching materials in advance and submit them for approval - Manager unhappy with way applicant prepared lesson plan - Course cancelled - Number of meetings, including about negotiation for collective agreement - Applicant continued teaching with unapproved and unmoderated materials - Applicant indicated to respondent his intention to perform only parts of his contract that he wished to perform and that undermined relationship to sufficient extent to allow respondent to terminate employment - Respondent entitled to treat agreement as being at an end - Applicant dismissed again during eight week notice period - That dismissal was also justified - UNJUSTIFIED DISADVANTAGE - Whatever problem respondent had with applicant's supply of materials for moderation and quality of materials, he was entitled to have opportunity to address any concerns prior to decision being made to cancel courses - Applicant lost income as result of action - Respondent acknowledged applicant entitled to be paid until end of notice period for hours taught - Applicant to supply respondent with invoice for payment - Applicant gave no evidence of stress from postponement of course - Unable to make compensatory award - Applicant denied ability to derive income after course suspended - Parties should endeavour to reach agreement on how much was owed to applicant - ARREARS OF HOLIDAY PAY - Respondent to pay applicant holiday at 6 percent - Parties to discuss calculation - DISCRIMINATION - Applicant not discriminated against because of involvement in union - GOOD FAITH - Respondent did not erroneously couch applicant's employment agreement as contract for services in attempt to avoid provisions of Employment Relations Act 2000 - Other breach of good faith claim related to disputes about evidence and claims that respondent's evidence was misleading or without foundation - Those were matters that went to assessment of strengths of parties' cases - PENALTY - Applicant sought payment of unspecified penalties - The one possible penalty action was for breach of s62 ERA - Declined to award penalty because respondent genuinely believed applicant was entering into contract for services - Length of service until disadvantage three months - Length of service until second dismissal four and a half months - Teacher |
| Result | Application dismissed (unjustified dismissal) ; Application granted (unjustified disadvantage) ; Orders accordingly ; Costs reserved |
| Statutes | ERA s62 |
| Cases Cited | NZ (with exceptions) Food Processing etc IUOW v Unilever NZ Ltd [1990] 1 NZILR 35 |
| Number of Pages | 9 |
| PDF File Link: | aa 137_06.pdf [pdf 52 KB] |