When re­la­tion­ships go wrong

Matamata Chronicle - - News -

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.

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