| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 510/10 |
| Hearing date | 10 Nov 2010 |
| Determination date | 14 December 2010 |
| Member | E Robinson |
| Representation | M Flyger ; L Thomas |
| Location | Hamilton |
| Parties | Ratcliffe v Weber |
| Summary | JURISDICTION – Whether employee or independent contractor – No appearance by respondent – Parties entered discussions for sale and purchase of applicant’s elephant which applicant owned for 30 years – Applicant to become elephant handler – No written employment agreement – Applicant paid in cash – Applicant claimed entered into employment relationship – Applicant claimed entered agreement so could continue to care for elephant – Authority found no documentation to establish real nature of relationship – Found applicant subject to control and management of several people while working for respondent – Found applicant wore same uniform as other circus personnel – Found applicant subject to control of respondent and integrated into operation of circus – Found applicant provided with all equipment necessary to carry out job responsibilities – Found applicant employee rather than independent contractor – UNJUSTIFIED DISMISSAL – Dismissal – Applicant instructed to go to next elephant feeding site – Applicant assumed elephant would follow – Applicant informed elephant lost – Applicant claimed respondent said tired of applicant not doing what was told – Applicant dismissed – Applicant discovered elephant given to New Zealand Royal Society for the Prevention of Cruelty to Animals – Found applicant not informed of any specific allegation of misconduct – Found applicant not provided with opportunity to refute allegations – Found no unbiased consideration of explanation – Found decision to dismiss pre-determined – Dismissal unjustified – REMEDIES – No contributory conduct – $3,000 reimbursement of lost wages appropriate – Interest payable – Found respondent deliberately plotted to ensure applicant not present at time elephant transferred – Found applicant considerably distressed due to close relationship with elephant – Found manner in which respondent treated applicant significant breach of good faith – $10,000 compensation appropriate – ARREARS OF HOLIDAY PAY – Applicant claimed received no annual or statutory holiday pay throughout period of employment – Found annual and statutory holiday pay due and owing – Elephant handler |
| Result | Applications granted ; Reimbursement of lost wages ($3,000) ; Interest ($159) ; Compensation for humiliation etc ($10,000) ; Arrears of annual holiday pay ($11,538.46) ; Arrears of statutory holiday pay ($1,714.28) ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s4(1A);ERA s6 |
| Cases Cited | Bryson v Three Foot Six Limited (No 2) [2005] ERNZ 372 |
| Number of Pages | 14 |
| PDF File Link: | aa 510_10.pdf [pdf 56 KB] |