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Berghan v Canterbury International Institute Ltd
20 Dec 2006, K Raureti, AA 382/06, (7 pages)
JURISDICTION - Whether employee or independent contractor - No appearance by respondent, although did provide some evidence to Authority - No dispute applicant previously engaged by respondent as contractor - Negotiations for last engagement led applicant to draw up contract for service between his company and respondent - Applicant claimed significant change to duties and role - Alleged thought of himself as employee but respondent required him to be paid through company - Submitted unheard of in education industry for principal to be anything but employee - Respondent alleged during period in question applicant carried on other business - Applicant a businessman and drew up contract from relatively equal bargaining position - Parameters applicant had to work within consistent with sound business practice and did not translate into control - Not unheard of to have private training establishments run by management structure or director - Industry practice did not assist applicant - Independent contractor - No jurisdiction - Principal
Result: Application dismissed ; No order for costs
Service & Food Workers Union Nga Ringa Tota & Ors v New Zealand Racing Board
8 May 2007, J Crichton, WA 74/07, (6 pages)
JURISDICTION - Members of first applicant union made redundant by respondent - Argued dismissals unjustified and respondent misconstrued its functions under s9(1)(a) Racing Act 2003 ("RA") by making decision to terminate on improper basis - Respondent argued claim did not fall within examples of employment relationship problems ("ERP") in s161 Employment Relations Act 2000 ("ERA") - Authority found s161 ERA examples not exclusive and wide meaning allowed in s5 ERA - In any event, applicant did not rely exclusively on interpretation of RA - It alleged unjustified dismissal, which on its face meant could lodge personal grievance - Claims within s161(e) ERA - Respondent claimed Authority had no jurisdiction to interpret RA provision and claim not personal grievance or dispute - Applicant asserted Authority had jurisdiction by reason of s113 and s194A ERA - Original statement of problem did not explicitly refer to personal grievance - Authority found, however, it plainly fell with terms of s194A ERA as sought to advance ERP by using ERA problem solving provisions - Amended statement of problem referred to unjustified dismissals, bringing matter within s113 ERA - Authority satisfied claim concerned an ERP - Even so, Authority had power to reach conclusions on actual nature of claim - Authority had jurisdiction to hear matter based on proper interpretation of statements of problem - If had found otherwise, no other redress possible given effect of s194A(2) which precluded recourse to High Court - Respondent also contended s9(1)(a) RA "non-justiciable" as no statutory duty created giving rise to judicial enforcement - Issue for determination exclusively whether Authority had jurisdiction - Not necessary to hear evidence whether respondent misdirected itself in relation to its functions
Tatom v Duffield
16 May 2007, H Doyle, CA 55/07, (11 pages)
JURISDICTION - Whether employee or independent contractor - No written employment agreement - Parties did not put minds to nature of relationship - Authority unable to conclude common intention - Factors indicative of employment relationship outweighed factors indicative of independent contractor - Real nature of relationship employment - Employee - UNJUSTIFIED DISMISSAL - Applicant made statements to government department relating to respondent's partner, an employee of that department - Partner subsequently dismissed - Probable respondent knew of statements and likely would have been angry and raised them - Authority found respondent said words to effect of "X is fired so you're fired" - Fair and reasonable employer would have met or at least written to applicant and explained difficulties of continuing working together - Should have negotiated notice period - Instead, summarily dismissed and applicant's partner threatened - Unjustified dismissal - Remedies - Fact employment short, and applicant unlikely could have continued working, relevant to award of lost wages and compensation - ARREARS OF HOLIDAY PAY - No details of earnings provided - Leave reserved for applicant to return to Authority if wished holiday pay to be calculated - Counterclaim - Respondent counterclaimed against applicant for slander and defamation of character, and sought lost earnings and compensation - Argued statements about to government department false - Respondent seeking damages flowing from dismissal of his partner by her employer - Authority did not have jurisdiction - Counterclaim dismissed - COSTS - One ½ hour investigation meeting - Costs of $1,000 appropriate - Length of service two months - Hammer hand
Result: Application granted (Jurisdiction, unjustified dismissal) ; Reimbursement of lost wages ($2,720) ; Compensation for humiliation etc ($5,000) ; Counterclaim dismissed ; Costs in favour of applicant ($1,000)
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