| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 456/10 |
| Hearing date | 12 Aug 2010 |
| Determination date | 22 October 2010 |
| Member | K J Anderson |
| Representation | C Patterson ; A Scott-Howman |
| Location | Auckland |
| Parties | Farrimond v Fairfax New Zealand Ltd |
| Summary | JURISDICTION – UNJUSTIFIED DISMISSAL – Whether person intending to work – Applicant alleged offered and accepted position but respondent withdrew offer – Claimed was person intending to work, therefore employee and able to bring personal grievance – Respondent claimed applicant never offered employment - Applicant employed in New York as Art Director for Sports Illustrated – Applicant looking for employment opportunities in Australasia to be closer to family – Applicant’s father (“F”) owned company that provided services to Cuisine magazine, which was published by respondent – F claimed Cuisine’s editor (“M”) expressed dissatisfaction with incumbent Creative Director (“C”) and conveyed intention to remove him – F claimed M expressed interest in meeting applicant to assess suitability for C’s role – M and applicant has series of meetings and communications in relation to applicant being appointed to C’s position – Applicant began doing freelance work for Cuisine - Applicant had meeting with respondent’s General Manger of media magazines division (“B”) – B informed applicant not legally possible to terminate C’s employment or disestablish C’s role – B explained to applicant that M had not followed proper procedures and unable to offer applicant C’s position – B offered applicant alternative freelance employment – Applicant declined alternative roles and raised personal grievance - Authority found on specified date M sent email to applicant stating committed to applicant beginning freelance work until could be permanently placed and that C would be informed being restructured out of position – Authority found at that point, but not earlier, essential elements of contract were present, being, offer, acceptance, and intention to enter into legal relationship – Found was also reasonable certainty – Found consideration to apply could have reasonably been assumed to be salary applicable to position held by C – Question whether M had ostensible or implied authority to commit respondent to contract with applicant - Authority accepted M did not follow required practices and procedures – However, found applicant could not be expected to know that - Found given senior management role M held, applicant entitled to take at face value commitment he made on behalf of respondent - Found from specified date valid and binding contract existed whereby respondent would employ applicant initially on freelance work and subsequently on permanent basis in role held by C – Therefore applicant person intending to work and hence an employee – Applicant had right to bring personal grievance - Found respondent could not remove C from role as M intended – Therefore, not possible for respondent to uphold undertaking given by M about role – Found circumstances not applicant’s fault – Found applicant unjustifiably dismissed - Remedies – No contributory conduct - Applicant sought reimbursement of lost wages from date ceased freelance work until began new employment - Authority satisfied loss of income applicant suffered would not have been sustained but for personal grievance – However, found applicant failed to mitigate loss of income by refusing reasonable and valid offer of alternative employment from respondent which would have taken her through to when she obtained alternative permanent employment – Respondent claimed applicant should not be entitled to any reimbursement of lost wages – Found s128 Employment Relations Act 2000 made reimbursement of lost wages mandatory – Also accepted applicant most probably not in appropriate frame of mind to make rational or prudent decision about remaining in freelance role with respondent at time - Applicant entitled to three months reimbursement of lost wages - Found applicant humiliated and suffered considerable loss of dignity due to personal grievance - $12,000 compensation appropriate – Design Director |
| Result | Applications granted ; Reimbursement of lost wages ($23,400) ; Compensation for humiliation etc ($12,000) ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | Contractual Remedies Act 1979 s6;ECA s41;ERA s4;ERA s4(1)(b);ERA s5;ERA s6;ERA s6(1)(b)(ii);ERA s103;ERA s128;ERA s157(3);ERA s162;ERA Second Schedule cl10;Fair Trading Act 1986 s12 |
| Cases Cited | Betta Foods (NZ) Ltd v Briggs [1997] ERNZ 456;Canterbury Hotel, etc IUOW v The Elms Motor Lodge Ltd [1989] 1 NZILR 958 ; (1989) ERNZ Sel Cas 277;Macadam and Renwick v Port Nelson Ltd (No 2) [1993] 1 ERNZ 300;Pascoe v Covic Motors Ltd [1994] 2 ERNZ 152;Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659 |
| Number of Pages | 19 |
| PDF File Link: | aa 456_10.pdf [pdf 67 KB] |