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Requirements For Legally Enforceable Contract Of Service Notes

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29th March 2011: Labour Law Requirements for Legally Enforceable Contract of Service:

1. Consent has to be real Murry and Murry v Inland Revenue Dept: Unusual case, Paul Roth thinks that it was wrongly decided.
- Two employees sue their employer for wrongful dismissal
- Dismissed from IRD because they plead guilty to three charges of benefit fraud, but the fraud occurred before they were hired
- The Murrays didn't actually misrepresent themselves at all, they didn't lie to IRD when they applied for their jobs. They told the truth.
- No duty to disclose information if you haven't been asked specifically. Even if you know if you disclosed it you wouldn't get the job.
- Weren't specifically asked whether they were being investigated for benefit fraud. Only asked if they had been arrested, charged or convicted - no, they hadn't. Didn't volunteer that they were being investigated.
- The grounds for dismissal was misconduct. But the misconduct occurred before they were hired. Even though they were found to have given honest and proper answers to all questions that had been put to them.
- Basis of the court's decision in this case was the court's equity and good conscience jurisdiction. Employment Relations Authority and Employment Court have an equity and good conscience jurisdiction. This means that the Courts will apply the law but in some circumstances if it doesn't seem equitable or fair that people should stand on their legal rights, then the jurisdiction can be exercised. Not normally exercised to such an extent in this case - normally exercised in relation to procedural steps or evidence. To completely overturn people's legal rights on the basis of equity and good conscience...?
Misconduct did not occur while the employment was on foot. So instead it invoked its equity and good conscience jurisdiction to challenge the authority's result. Paul Roth thinks its kind of stretching it to invoke the jurisdiction. Everything is okay in the hiring process, but in the course of their employment they were disqualified for misconduct by their convictions. If the court had focused on the standards of employment and looked at what was required i.e. trustworthiness (like trucker getting drunk driving conviction..?) then perhaps that would have been a better way to look at it. Job requried honesty and trustworthiness - crime - no longer have the capacity to fulfil their jobs. Reality of consent:

1. Undue influence (bringing to bear pressure or psychological pressure or domineering type pressure, usually on soft-headed people (not smart) or people with personalities easily dominated)

2. Duress (harsh pressure or threat of violence) Paul doesn't know of any cases involving duress in the employment sphere. Under the Employment Contracts Act 1991 pleaded a couple of times but thrown out. Under ERA no cases on it. Undue influence pretty rare. Overbearing somebody else's will.

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