| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 33/10 |
| Hearing date | 18 Feb 2010 |
| Determination date | 24 February 2010 |
| Member | K J Anderson |
| Representation | M Williams ; D McLeod |
| Location | Napier |
| Parties | Philpott v Athena Footwear Ltd |
| Summary | JURISDICTION – Whether person intending to work – Applicant claimed offered and accepted employment with respondent but before employment commenced told position no longer available – Respondent claimed while interviewed applicant for position no offer to employ made or concluded – Business applicant employed with closing down so applicant seeking alternative employment - Applicant became aware of salesperson position with respondent – Applicant met with respondent’s owners/directors where had general discussion about nature of job and pay rate – Parties met week later at respondent’s retail premises – Conflict in evidence between parties as to whether applicant filled out application form and what was agreed between them with regards to offer of employment in further phone conversations - Authority found, on balance of probabilities, applicant invited to have further discussion about employment agreement on specified date after applicant finished employment with current employer - Found applicant believed offered position and had accepted it with employment to start on specified date, with two subsequent postponements of starting date – Found applicant’s belief erroneous – Found more probable that while respondent saw applicant as likely employee details still to be concluded and any offer subject to obtaining further information about references and previous employment – Found applicant then had second thoughts about applicants suitability for role for two reasons – Firstly, as applicant had twice postponed coming to see respondent – Secondly, contacted by applicant’s former partner (“G”) who informed them was involved in court hearing with applicant and respondent should check applicant’s employment background – Found G appeared to be acting in vindictive fashion following breakdown of personal and business relationship with applicant – Found applicant concluded offer of employment withdrawn when respondent contacted her to confirm would be meeting on specified date and to discuss what G had said – Authority accepted applicant may have perceived been offered and accepted position – However, did not accept binding legal relationship entered into – Found at best respondent proposing to offer applicant employment - Found while was meaningful discussion between parties leading to possibility applicant would become employee, discussion did not culminate in binding legal agreement sufficient enough to give applicant status of employee under sections 5 and 6 Employment Relations Act 2000 - Applicant not in employment relationship with respondent – Applicant unable to pursue personal grievance on any grounds - Salesperson |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s5;ERA s6;ERA s6(1)(b)(ii) |
| Cases Cited | Canterbury Hotel, etc IUOW v The Elms Motor Lodge Ltd [1989] 1 NZILR 958 ; (1989) ERNZ Sel Cas 277 |
| Number of Pages | 8 |
| PDF File Link: | wa 33_10.pdf [pdf 31 KB] |