Yet another Employment Relations Authority case teaching Employment 101 – put your agreement in writing, don’t let your children conduct your disciplinary process, and don’t dismiss by text message!
In the case of Fisher v O’Brien a nanny was hired on what the family believed was a loose and flexible arrangement, initially to pick up children from school, then to do additional childcare and cleaning. The nanny, however, believed the arrangement was an ongoing one, but with flexible hours. No written agreement was entered into.
A few weeks on, tension arose between the nanny and the children, with the children saying that the nanny drove too fast and swore. Matters came to a head one evening when the mother was out for dinner, with one of the children calling the mother to express their discontent. The mother concluded (unsurprisingly) that the arrangement was not working. The following day she sent a text message expressing her view that the arrangement could not continue and stating “we can talk about it later”.
The nanny was extremely upset and filed a personal grievance alleging unjustified dismissal. The Employment Relations Authority found that the arrangement, while initially casual, had changed over time to an ongoing arrangement. It went on to find that the dismissal was unjustified, and in doing so took particular note of the arbitrary way in which the relationship had been terminated. The nanny was awarded nearly $2,000 for lost wages and a further $4,000 for compensation for humiliation, loss of dignity and injury to feelings. Of some surprise was the lack of discussion about whether the nanny was a contractor or employee, although less surprising with the knowledge that the mother acted for herself in the Employment Relations Authority.
The case serves as a timely reminder of the importance of getting it right from the start. Had the family arranged a simple one page contract clearly stating that the nanny was a contractor and that the arrangement was casual, they could have avoided this outcome.