CRN 6057 Commercial Law : Employment Relations Act

Part A

Question Number

Sub

part

Your answer

Max mark

Mark

a

Case: LEE V Minor Developments Ltd T/A Before Six Childcare Centre AK AC 52/08 23

Legislation: Employment Relations Act 2000, section 66

1

Leave blank

b

 Generally, ordinary and natural definition is given to texts with respect to legislation by the courts. However if the provisions of Interpretation Act 1999 Section 5 are taken into account the text of a legislation has to be given meaning by considering the overall purpose of the legislation along with other relevant parts of the Act and adjacent words to the text as they might provide a different and real meaning to the text. The purpose of this section is to bring an end to ambiguity with respect to the rules of statutory interpretation. There are other things which are also taken into account by the court in order to properly provide meaning to the legislation which includes table of contents, explanatory materials, and marginal notes, format of the Act, diagrams and graphics.

The purpose of the provision is one of the essential aids of interpreting a statue, all the text provided in a legislation has to be given a meaning in accordance to the purpose of the act as far as practicable. Therefore a concrete purpose has to be present in relation to a legislation (MacCormick et al. 2014).

4

c

With respect to the case of LEE V MINOR DEVELOPMENTS LTD T/A BEFORE SIX CHILDCARE CENTRE the issue in front of the court was to properly interpret the text provided in Section 66 of the Employment Relations Act 2000. The court in this case had find out the meaning of employment in relation to a day care centre. Section 66 of the ERA provides the definition of fixed term employment. There was no reference to casual employment in the legislation. However taking into consideration the purpose of the act the court ruled that causal employment can be determined by taking into account the time, purpose, lack of work, no guarantee of work, and employment based on needs. Thus the court was successfully able to determine that plaintiff was not a casual employee in this case and deserved the rights under other sections of the legislation and she had been treated. The court ruled that the plaintiff deserved compensation for the reduction in her working hours and the humiliation she faced. This case can be applicable on the day care business as the care is directly related to a day care centre and the business would also require to hire carers and teachers for taking care of the children.

5

d

Facts- the day care centre appoints a teacher who is qualified for the purpose of teaching under the ESC regulations 2012. The teacher had been removed from the job as the employer though that she is being expensive for the business. The teacher was not offered any redundancy payments and was asked to work for more hours so that she can resign herself or the business can make extra profit.

Implications- in the provided circumstances the day care business might have to go through legal proceedings as a claim can be made by the teacher against whom the actions have been taken. The business may have to pay large sum of fines under the ERA in relation to unfair dismissal, redundancy provisions and unfair treatment of employees. This would make the business losses reputation and make the working environment less productive.Alternate interpretation- in case there is an alternate interpretation in this case as compared to what was done in the above discussed case the business would not be liable for the damages. It can be argued that as the raise of business hours or the dismissal was purely for business needs the dismissal is fair.

10

Question Number

Part D

Sub

part

Your answer

Max mark

Mark

a

CAMPBELL ROBERT THOM v DAVYS BURTON SC 62/2007 [2008] NZSC 65 which has been selected for the purpose of this section. The case is in relation to tort law particularly negligence. A claim of negligence canaries out of certain situation with respect to the day care centre. Through the given case the various technicalities in relation to negligence had been discussed. This case is related to a claim made by a person against solicitor who represented him in a different trial in 1990. In this case the solicitor had alleged provided negligent advice to the plaintiff. According to the limitation act if six years have passed after the cause of action a claim cannot be made. Common law provides that a claim of negligence can be made when there is an actual loss suffered by the plaintiff. In this case the court of appeal found that the limitation period would be applicable from the day the client has suffered the loss which was in 1999 thus he could claim against the solicitor.

5

Leave blank

b

 It is the duty of a lower court to follow the judgements which have been provided by a higher court. A precedent is an example or a guide in relation to a previous event or action which has or can be taken into account for adjudicating a judicial point. It can also be defined as a guideline which has been established through previously adjudged cases and can be binding or persuasive. The emphasis of common law is to make sure that there is consistency and predictability in judicial decisions thus cases with similar facts must yield similar results. Coherency, consistence, apprehension of justice and efficiency is ensured through the rule of precedents.

In the above discussed case the court used persuasive precedent as the case had been decided by the supreme court and there no court above it in New Zealand. The principles which were used by the court for deciding this case were provided in the case of First National Commercial Bank plc v Humberts [1995] 2 All ER 673 and Forster v Outred & Co [1982] 1 WLR 86 (CA). The appeal of the solicitor was dismissed and he was asked to pay $15000 as compensation.

7

c

 As per the rules related to Hierarchy of courts the decision made by a higher court is binding on the judgement of a lower court in the same jurisdiction. No high court can be compelled to follow the precedent of a lower court. When the precedent comes from the same level of court for example another judge than the decision is merely persuasive and not binding. For example a district court is bound by the judgement of a high court but not a tribunal.

The decision provided by the above discussed case had been made by the supreme court thus on the high court the decision would not be persuasive but binding according to the doctrine of precedent.

3