When relationships go wrong
It’s no laughing matter when relationships with your home staff go bad. Have a think about the following case, when and if you are considering hiring someone to help out around the home, be it to look after the kids, do a bit of gardening or clean the house. In the case of Fisher v O’Brien, Mrs O’Brien thought she had agreed to allow Ms Fisher to try picking her five children up from school to ascertain whether she needed any assistance on an ongoing basis. Ms Fisher, on the other hand, thought she was being employed as a nanny on a part time basis. The children didn’t like Ms Fisher and things were not going well. One night, Ms Fisher was looking after the children while Mr and Mrs O’Brien went out for dinner with friends. The dinner was interrupted by telephone calls from Ms Fisher and one of the children. This was really the last straw and Mrs O’Brien decided things were just not working out. The Employment Relations Authority was satisfied that the work with respect to looking after the children was “casual” in nature and Mrs O’Brien was able to bring that work to an end. However, during the relationship, Mrs O’Brien suggested Ms Fisher also take over from her cleaner. This was accepted and every Monday Ms Fisher undertook the house cleaning duties for Ms O’Brien. The Authority, relying on well settled principals that employment relationships may change over time, concluded that when Ms Fisher commenced the regular cleaning work her employment relationship changed from casual to ongoing part-time employment. Given that, Mrs O’Brien was not able to simply terminate the relationship when it all went wrong. Mrs O’Brien was an individual with no knowledge of employment law, however, the old adage that “ignorance is no excuse” came into play and Mrs O’Brien was ordered to pay remedies of $5,779.00 to Ms Fisher for an unjustified dismissal.
But wait there’s more! Because of the finding that Ms Fisher was an employee, the issue of holiday pay needed to be addressed as no holiday pay had been paid to her when the relationship ended. This case demonstrates the importance of the parties discussing their arrangements and putting these in writing from the outset. The Employment Relations Act requires all employers to provide written employment agreements to their employees. Breaches of this requirement may attract penalties of up to $10,000 for an individual and $20,000 to a company. Perhaps luckily for Mrs O’Brien, Ms Fisher did not seek any penalties for Mrs O’Brien’s breach of the Act for having no written agreement in place! The lesson is to ensure that before you commit to engaging any home help – make sure the terms are clear irrespective of whether the person is being engaged as an employee or as a contractor. Not sure or need help? Call our Employment Specialist Vicki Campbell at Tompkins Wake Lawyers on her direct dial 07 838 6034.