| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 248 |
| Hearing date | 16 May 2011 |
| Determination date | 09 June 2011 |
| Member | R Larmer |
| Representation | W Blissett (in person) ; C LaHatte |
| Location | Whangarei |
| Parties | Blissett v Te Roroa Whatu Ora and Anor |
| Other Parties | Manawhenua Trusts |
| Summary | JURISDICTION – Whether person intending to work – Applicant previously provided services to respondents as independent contractor – Applicant claimed offered and accepted employment with respondents and when respondents withdrew offer before employment commenced applicant dismissed – Applicant claimed was person intending to work – Respondents claimed applicant not employee so Authority lacked jurisdiction to hear claim – Claimed applicant not person intending to work as had been offer and counter offer but not acceptance – Claimed rejected applicant’s counter offer as lacked confidence in applicant and believed did not have financial acumen required - Authority found parties mutually agreed to enter into employment relationship and had set in place process to enable them to finalise terms of applicant’s employment agreement – Found fact negotiations over terms not concluded did not mean employment relationship not formed – Found applicant was employee as was person intending to work - Applicant employed as General Manager of respondents on terms and conditions applicant verbally offered and which verbally accepted at meeting – Authority had jurisdiction to hear claim - UNJUSTIFIED DISMISSAL - Found initiative for ending employment came from respondents – Found withdrawal of original offer of employment amounted to dismissal – Found evidence did not establish applicant engaged in misconduct serious enough to justify summary dismissal – Found respondents not justified in treating applicant’s negotiation points as counter offer which voided original offer of employment – Found alleged performance concerns were known to respondents at time decided to offer applicant employment - Found respondents did not properly or fully investigate any of alleged performance concerns before concluded applicant’s performance so poor employment should be terminated – Found respondents breached good faith obligations as failed to provide applicant with information relevant to continuation of employment – Found therefore applicant not given opportunity to comment on information - Found evidence suggest respondents could bear some responsibility for issues which were of concern - Dismissal unjustified - Remedies – No contributory conduct – Applicant claimed took six weeks to obtain work equivalent to salary respondents had agreed to pay - Authority found applicant properly mitigated loss - Respondents to pay applicant six weeks’ reimbursement of lost wages – Applicant gave convincing evidence of hurt and humiliation suffered – Found applicant obviously still distressed about situation - Bearing in mind applicant had not actually started work $5,000 compensation appropriate - General Manager |
| Result | Application granted ; Reimbursement of lost wages ($11,538.46) ; Compensation for humiliation etc ($5,000) ; No order for costs ; Disbursements in favour of applicant ($71.56)(Filing fee) |
| Main Category | Jurisdiction |
| Statutes | ERA s4(1A);ERA s5;ERA s6;ERA s6(1)(a);ERA s6(1)(b)(ii);ERA s103A;ERA s124;ERA s128(2) |
| Cases Cited | Baker v Armourguard Security Ltd [1998] 1 ERNZ 424;Weal v Leusen Holdings Ltd t/a Heather-lea Rest Home [2002] 1 ERNZ 655 |
| Number of Pages | 17 |
| PDF File Link: | 2011_NZERA_Auckland_248.pdf [pdf 44 KB] |