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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
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Experience:  34 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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I worked at Cathy Davys hair& adyspa for 1 year&9 months as

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I worked at Cathy Davys hair& adyspa for 1 year&9 months as a nail technician. At the interview Cathy&I discssused the terms of my contract. I commenced work, 3 months later I was presented with a contract with restrictions of trade and other terms that I han't agreed to in the interview. I refused to sign it, continued to work without signing a contract. On the 27th May, there was an incident where Cathy verbally and physically sexually harassed her in front of a witness. This incident caused me to be tearful at work the next day the 28th and I communicated the situation to the manager of the day, Gwen Cotton, who later put this to Emma, the HR manager, who aproached me re incident in a very public manner, and said she will not tell anyone it happened. When I said to Cathy that I felt something inappropriate happened that day she said "I can forget things", as if saying "i won't tell if you don't"
In late August I was asked to attend a performance appraisal the likes of which all staff were undergoing at the time with Cathy and Emma. I did not feel that performance appraisal is appropriate for a contractor, however I attended following reassurance from Cathy that the goal of the meeting was to discuss business growth strategies. The meeting was chaired by Emma who held it in an employee upraisal format. I have restated the inadequacy of such approach, which resulted in a time consuming power struggle discussion between Emma and I, depriving me of the opportunity to discuss matters at hand and finished off by Cathy re-enforcing the fact that Emma is the new HR manager and I am to respect that and that I am under the Cathy Davys umbrella and I will "live by their rules" . I had only ever been paid commission, however in the little time Cathy and I had left to discuss the issues at hand I had agreed to increase my presence at the salon from by appointment to a full time week with a view to being able to serve walk-in clients, but have clearly stated that so long as I am a contractor and am paid as such I am contracted to do the work that is specifically my specialty.
The next week Emma confronted me with a new contract, demanding it be signed by 'last week' again containing terms Cathy knows I was not prepared to be bound by, such as: restriction of trade, participation in the cleaning of the salon and adherence to whatever discounts the salon might like to advertise for my services. I refused to sign without legal advice. New reception and junior management staff were employed in early September, to suppliment the existing ones, now numbering 5 in total, who began to book manicure clients for employees of the salon. When I approached Cathy about this she said that I do not have the exclusivity on nails here. I don’t want to pay them for doing nothing, and if they have nothing to do I send them home. I want them to be able to promote their other services while manicuring”. This was in my mind very unfair and a significant threat to my livelihood. I had noticed this tendency as soon as it started to happen and moved the clients into my booking column thinking it was just an inaccuracy due to lack of judgement by the inexperienced staff. Many of the staff did the same thing so as to arrange for more convenient brakes which was reproached at the staff meeting and all were instructed to not touch the schedules. I continued to ensure that the greater time i was now spending at the salon was not spent in vain which resulted in conflict. When I approached Cathy about the unfair distribution of work I was told to leave it for now and come and have a glass of wine instead. I refused. I refused a demand for meeting at two hours notice with Cathy and 2 management staff. It was reissued another with 2days notice with itemised agenda and offer to bring a support person. (Friday – for Monday).
I found a support person and Called Cathy who on the Sunday, she did not answer so I left her a voicemail asking to change the meeting to the Friday when her support person was available. On Monday Cathy left a voicemail on my cell phone an hour before I was to start work “Your services are not required at the salon today. Your things will be sent to you by courier”. Cathy thought she had hung up but hadn’t and I heard a roar of laughter in the background; I still has the message on my cellphone. Letter and my merchanside arrived by courier, letter said contract has been cancelled. I responded requesting my client list. was denied on basis of privacy. my number is XXXXX given out2clients. many are confused, many have prepaid for my services and aren't being refunded, others r being tricked into being served by the salon and r disappointed. Contract contained a 28d.severance and dispute through mediation procedure. I'm going to disputes tribunal. What can I claim?
Submitted: 3 years ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 3 years ago.
Hi
Welcome to JustAnswer. My first response will follow shortly. Please feel free to follow up if anything is not clear. You can claim for the normal period of notice which you would have been given and the lost commissions for the period. Calculate that according to what you normally earned, As you a contractor you do not have the same rights as an employee for unfair dismissal however. You should also ask for the client list. Lawyers cannot appear in the Disputes Tribunal, so that may be why they will not appear for you.
Customer: replied 3 years ago.
I formally wrote to the salon requesting my client list and was denied due to a privacy issue. I checked with the privacy commissioner's office who have unofficially suggested that names and numbers are in the public domain, I wrote with that and was denied again, but was promised in writing that all my clients will be called and given my number, since then I have heard from my clients that my number was not given without them insisting, that some were not called and others were not given my number as they did nit asked for it, thinking my number ought to be protected by privacy. I have prior to my employment with Cathy, during it and since then been a mobile nail tech and she knows it as this was a condition of my employment. My clients however are being told that I am without a position from which I can serve them. I strongly believe I am being unfairly restricted in trade. What is my position please?

I strongly believe, partly because I was lead to believe so by Cathy and her management team that had the proposed meeting happened, we would have been able to establish the issues in dispute more formally and pursued mediation. While such may not be available free of charge for contractors, it would have still been an option providing for delay in dissolution of the contract, continuity of my income and a resolution resulting in economic growth for both myself and the establishment. I have worked very very hard, risked and deprived myself for two years to build this business, which experienced it's best month ever, with the turnover of over $7K and was lead by Cathy to believe that I had her full support in developing new service lines for which she felt I was best equipped member her personnel and which would have exponentially increased my earning capacity. Due to the events of the 27th of may and the surrounding issues I felt I needed a support person in a meeting with Cathy and two management staff. Cathy has expressly acknowledged that fact in her letter and when I did my part of proceeding with that plan Cathy abandoned it and dismissed me without so much as providing grounds for her decision. I feel that my losses here span much further then the severance. The contract Cathy Gave me is headed "Licensee Agreement", but contains terms of a contractor's agreement. Do I have a cause in court action for remedies in the form of compensation for lost earnings in contractual misrepresentation? breach of contractual terms Cathy intended to be bound by? as a licensee with contractual interest?
Expert:  Chris The Lawyer replied 3 years ago.
This is the disadvantage of choosing to work as a contractor-there are good remedies for employees which are just not available, and she did not need to suggest a support person or use mediation because of this. However breach of a contract leads to a claim for damages, which are whatever you have lost because of the breach. So you first have to prove the breach, and then prove whatever you have lost. This would be your lost earnings over what the Tribunal considers is a reasonable period-about 1-2 months I would think.
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 19368
Experience: 34 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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