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Bambury v Elation Ltd t/a Komodo Premium Bar
17 Jan 2008, D King, AA 12/08, (8 pages)
JURISDICTION - Identity of respondent - First respondent correct party to proceedings - Whether employee or independent contractor - Parties began relationship with signed employment agreement, although number of its provisions never carried out - Agreement drawn up by applicant's solicitor and respondent required to sign it without opportunity to seek advice - No discussion about employment status - Agreement not taken as indicative of parties' intentions - Respondent considered applicant contractor like previous managers - Remuneration linked directly to success of bar and applicant had discretion to run it as saw fit - No fixed hours and able to take on other work - Although respondent later registered for PAYE and taxed applicant's pay accordingly, no evidence actual nature of relationship changed - No employment relationship - Bar manager
Result: Application dismissed ; Costs reserved
Chini v Open Cloud NZ Ltd (formerly Open Cloud Ltd)
17 Dec 2008, G J Wood, WA 170/08, (5 pages)
JURISDICTION - Authority to determine appropriate forum for applicant's employment problem - Employment Agreement ("EA") stated Californian law to apply - Authority satisfied if case heard in New Zealand ("NZ") then Californian law would apply as that law chosen by parties - Respondent a NZ registered company operating out of NZ - Applicant employed to work in California - Respondent filed legal proceedings against applicant in California prior to applicant lodging statement of problem in Authority - Authority found principles for determining appropriate forum found in Oil Seed Products (NZ) Ltd v HE Burton Ltd (1987) 1 PRNZ 313 - Applicant accepted exclusive jurisdiction clause in EA and that work carried out in California suggested California appropriate forum - Applicant claimed respondent NZ company operating in NZ where three directors based, EA signed in NZ and respondent had no assets in California - Applicant also argued difficult to enforce judgment in California and counterclaim not available - Applicant also sought Authority ruling that respondent's behaviour in initiating proceedings in California after applicant made claims "tactical" - Respondent argued contract for employment in California and work substantially performed there - Respondent also argued applicant paid in US dollars, subject to proceedings there and contract had American flavour such as termination at will - In response applicant argued terminology of contract referred to NZ provisions - Authority found clear from jurisprudence modern approach favoured dealing with issues in California - Furthermore, contract stated legal issues to be dealt with in California - Authority did not accept respondent's behaviour "tactical" as simply insisted contract be followed - Authority concluded Californian Courts had most real and substantial connection with disputed events - Found looking at matter as whole, was clear California appropriate forum to deal with issues since was where work carried out and disputed events had effect - Application dismissed - Costs reserved
Result: Application dismissed ; Costs reserved
Dempsey v Waikato Drycleaners (1983) Ltd
23 Dec 2008, V Campbell, AA 438/08, (8 pages)
JURISDICTION - Applicant dismissed after respondent informed by client that applicant had criminal record, was taking action against former employer and interviewed with another employer prior to starting with respondent - Client told respondent that did not want applicant at work site - Applicant claimed was summarily dismissed for being dishonest, untruthful and lying to respondent - Respondent argued applicant not employee because never commenced work - Alternatively argued dishonesty justified dismissal - Applicant completed employment form where asked to disclose criminal convictions and whether awaiting hearing "of any charges in a civil or criminal Court of law" - Applicant answered "No" to both questions - Also left gap in form which requested information about current and previous employment - Respondent argued employment offered subject to everything "checking out ok" - Applicant provided with employment agreement ("EA") already signed by respondent - Authority concluded EA made no mention that offer subject to everything checking out - EA signed but not returned to respondent - Authority satisfied applicant "a person intending to work" under s6 ERA - Authority's conclusion supported by evidence that agreed start date confirmed and applicant already sized for company shirt - Applicant an employee - UNJUSTIFIED DISMISSAL - Authority found upon signing EA applicant attesting aware employed on answers provided and if in respondent's opinion questions not answered truthfully or completely employment could be terminated without notice - Authority found had respondent enquired into where client obtained information about applicant then would have revealed applicant long time member of client's club and consequently regularly on client's premises - Applicant called to meeting on first day and told information received from client - Respondent put to applicant that dishonest when listing previous employment for prior year - Applicant acknowledged employment not disclosed and that at time application completed, applicant taking action for unpaid wages - Authority found had respondent taken time to check information provided by applicant then would have seen gap pertaining to employment - Found applicant did not provide false dates of employment - Found respondent could have questioned applicant about gap in information prior to offer of employment - Also found respondent wrongly concluded claim against previous employer same as applicant awaiting the hearing of charges in a criminal or civil Court - Authority satisfied applicant did not knowingly withhold relevant information as mistakenly believed disclosure not required under Criminal Records (Clean Slate) Act 2004 - Respondent's refusal to disclose name of client meant applicant unable to advise respondent that was member of client's club and visited site for social reasons - Calling applicant to disciplinary meeting without warning that dismissal imminent procedurally unfair - REMEDIES - Authority found applicant failed to provide full and complete employment details when obligated to - Prudent employee would have checked legal obligations before deciding not required to disclose previous criminal conviction - Contributory conduct 50 percent - $1000 compensation appropriate - Driver/Customer Service
Result: Application granted ; Reimbursement of lost wages ($2160) ; Compensation for humiliation etc ($2000 reduced to $1000) ; Costs reserved
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