Costs - Employment Relations Act 2000
B & D Doors (NZ) Ltd v Blaker
22 Jun 2007, J Wilson, AA 188/07, (3 pages)
JURISDICTION - COSTS - Respondent successfully sought compliance with earlier costs order in its favour - Sought contribution of $870 to total costs of $1,312 incurred obtaining compliance order - Alleged order required as applicant failed to communicate with respondent about issue and ignored costs determination - Applicant argued matter simple and high costs not warranted, also original costs award subject of challenge - Submitted as costs not sought when compliance order applied for, awarding costs after matter concluded exceeded Authority's jurisdiction - Although Authority sympathetic to respondent's position, it did not raise question of costs when applied for order - Compliance determination made no order for costs and did not reserve issue - Application for compliance concluded by issuing of earlier determination - No order for costs
Result:
Application dismissed ; Orders accordingly ; No order for costs
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Busing v Autoterminal New Zealand Ltd
19 Mar 2008, V Campbell, AA 105/08, (2 pages)
COSTS - Unsuccessful personal grievance - One day investigation meeting - Respondent sought contribution to total costs of $9,062 plus disbursements - Disbursements included costs associated with attendance and medical assessment for applicant - Disbursements sought generally expected to be incurred with exception of assessment report - Applicant also paid to have assessment undertaken so no order made in relation to disbursements, those costs to lie where they fall - Applicant submitted legal costs of respondent not reasonable - Matter not complex and costs incurred by respondent were reasonable given preparation required and length of hearing
Result:
Costs in favour of respondent ($3,000)
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Clark v Sal's Trading Company Ltd
3 Dec 2007, V Campbell, AA 378/07, (3 pages)
COMPLIANCE ORDER - Applicant sought compliance with mediated record of settlement - Respondent claimed settlement signed under duress and asked for matter to be referred back to mediation - Record of settlement could not be cancelled - Compliance ordered - Missed instalments to be paid to applicant as lump sum - Authority not satisfied would be just to award interest on outstanding amount - PENALTY - Respondent claimed payments not made as not in financial position to do so - Availability of funds not relevant to whether breach of settlement wilful - No evidence respondent took steps to comply with record of settlement or explain to applicant why payments would not be made as agreed - Failures amounted to wilful breach of agreed terms - Penalty appropriate - COSTS - Applicant entitled to contribution to costs
Result:
Compliance ordered ; Penalty ($500)(Payable to applicant) ; Costs in favour of applicant ($250) ; Disbursements ($70)(Filing fee)
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Clear v Waikato District Health Board
29 Feb 2008, J Scott, AA 67/08, (5 pages)
COSTS - Partially successful personal grievance - Length of investigation meeting not specified - Respondent made two Calderbank offers, one prior to investigation meeting and one part way through investigation meeting - Respondent argued for costs to lie where they fall on basis of Calderbank offers - Applicant submitted Calderbank offers not relevant as both offers less than Authority award and were made too late - Also submitted that Calderbank offer conditional on other terms not a true Calderbank offer, Offer made to applicant contained condition terms be kept confidential - Authority found that while applicant unsuccessful in a number of claims, allegations of bullying at core of claim not comprehensively examined until matter with Authority - Applicant's partial success based upon point that respondent did not investigate totality of complaints after it had said it would and so did not treat her fairly - Respondent to pay applicant contribution towards costs incurred
Result:
Costs in favour of applicant ($5,000)
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Coates v Aerocool Ltd
18 Mar 2008, D King, AA 11A/08, (1 pages)
COSTS - Unsuccessful personal grievance - ½ day investigation meeting - Respondent sought reasonable contribution to costs - Applicant submitted awarding costs to respondent would create financial difficulties but no supporting documentation provided - Respondent entitled to reasonable contribution to reasonably incurred costs
Result:
Costs in favour of respondent ($1,000)
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Doney v X-Facta Resources Ltd t/a Orb Communications
28 May 2007, P R Stapp, WA 87/07, (10 pages)
UNJUSTIFIED DISMISSAL - Poor performance - Applicant presented with new sales targets - Respondent expressed concerns about applicant's performance - Applicant's allegation respondent advised he need not be concerned about disciplinary action not established - Subsequently given final warning, and two weeks to improve or disciplinary action would be taken - Dismissed after further meetings, where applicant disputed agreement to targets for first time - Although fair and reasonable employer would have put new targets in writing, no legal requirement for this - Applicant acquiesced to new targets and respondent left with impression applicant willing to give them a go - Did not establish targets unreasonable or unachievable - Applicant acknowledged sales did not increase - Fair opportunity to explain performance - Fair and reasonable employer would have detailed what consequences of not meeting targets were earlier, however respondent later put decisions in writing and invited further comment - However, decision to terminate made before applicant had opportunity to have input on options for lesser sanction - Also given improper notice, but breach ultimately corrected - Dismissal unjustified - Remedies - Applicant on notice of requirement to improve performance and consequences - Contributory conduct one third - COSTS - Less than one day investigation meeting - Applicant sought contribution to total costs of $4,850 - Relatively straightforward matter - Entitled to reasonable costs, calculated as $1,190 - Sales
Result:
Application granted ; Reimbursement of lost wages ($3,514 reduced to $2,361) ; Compensation for humiliation ($1,500 reduced to $1,000) ; Costs in favour of applicant ($1,190) ; Disbursements ($70)(Filing fee)
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Griffin v Priestley and Somerville Ltd (previously named Debt Recovery Group NZ Ltd)
31 Oct 2007, M Urlich, AA 343/07, (3 pages)
COMPLIANCE ORDER - Applicant sought compliance with record of settlement - Respondent did not dispute failure to fulfil settlement obligations - Advised liquidator to be appointed to wind up company - No evidence presented which would render compliance order of no practical benefit - Compliance ordered - PENALTY - Respondent's breach of settlement wilful - Penalty warranted - COSTS - Applicant entitled to full costs
Result:
Compliance ordered ; Penalty ($1,000)(Payable to Crown) ; Costs in favour of applicant ($2,500) ; Disbursements ($157.50)(Expenses) ; ($70)(Filing fee)
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Hollis v JV Hiab Transport Ltd
28 Feb 2008, V Campbell, AA 62/08, (2 pages)
COSTS - Unsuccessful personal grievance - Length of investigation meeting not specified - Respondent sought costs of $2,540 - While matter not overly complex, necessary for respondent to present detailed information of accounts and structure of business - Authority satisfied costs incurred reasonable given preparation required and length of hearing - Applicant to pay $1,000 as reasonable contribution to respondent's costs
Result:
Costs in favour of respondent ($1,000)(Including disbursements)
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Kapua v Te Hauora O Te Hiku O Te Ika Trust & Anor
11 Sep 2007, R A Monaghan, AA 282/07, (5 pages)
PRACTICE AND PROCEDURE - Application to strike out party - Applicant brought personal grievance against both respondents - Respondents claimed first respondent employer - Applicant and first respondent parties to written employment agreement - Applicant and second respondent party to agreement under New Zealand Public Health and Disability Act 2000 enabling her to use its maternity facilities to care for her clients - Agreement stated no employment relationship - Applicant argued sufficient proximity between her and second respondent for matter to be brought within jurisdiction of Authority - Submission appeared to be based on fact second respondent suspended applicant's access - Argued suspension directly affected employment with first respondent and related to employment relationship - No employment relationship between applicant and second respondent - Authority could not address merits of positions in respect of any problems arising between parties - Second respondent to be struck out as a party - COSTS - Second respondent sought costs - Applicant indicated unlikely to be in position to pay costs - Directed to advise Authority if seeking legal aid - Manager
Result:
Application granted ; Orders accordingly ; Costs reserved
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Leggett v McMaster
20 Jun 2007, J Crichton, CA 40A/07, (3 pages)
COSTS - Unsuccessful personal grievance - Two day investigation meeting - Respondent sought contribution to costs of $9,767, being two thirds of costs incurred - Alleged manner applicant advanced claim caused unnecessary additional expense - Applicant submitted had well presented, arguable case and costs should lie where they fall - Alternatively contribution of $1,000 appropriate - Applicant to accept consequences of subjecting alleged personal grievance to investigative process of Authority - However, unusual for Authority to order unsuccessful employee to pay two thirds of costs - Unfair for applicant to seek to reduce contribution to costs by casting doubt on necessity of respondent's witness - Respondent entitled to resist claim with whatever witnesses had at disposal - Starting point tariff for two day investigation meeting - Discounted as two full days not necessary - Contribution of $4,000 appropriate
Result:
Costs in favour of employer ($4,000)
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Licensed Media Ltd v Paddock
29 Jan 2008, R Arthur, AA 24/08, (4 pages)
COMPLIANCE ORDER - Applicant sought compliance with record of settlement - Parties agreed respondent would pay sum to applicant by instalments - If instalment missed, full balance of agreed sum became due - Applicant's evidence of sum outstanding accepted - Compliance ordered - Authority required to specify time frame for compliance - Respondent claimed would be in position to make full payment in six months - Applicant's submission that would be unduly long time accepted - Compliance required within 42 days of determination - Authority noted applicant had advised would try to "work out a way forward" with respondent before taking further enforcement steps - Non publication order prohibiting publication of amount due, except where necessary for enforcement - Applicant not entitled to interest as outstanding sum arose from agreement not judgment - Penalty not available as action not started with 12 months of cause of action becoming known to applicant - COSTS - One hour investigation meeting - Applicant entitled to reasonable contribution to total costs of $1,500 - Authority calculated reasonable costs as $750
Result:
Compliance ordered ; costs in favour of applicant ($750) ; Disbursements ($70)(Filing fee)
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McLeod v Bishop
29 Oct 2007, D Asher, WA 145/07, (3 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Applicant claimed owed wages and holiday pay from employment - Accepted responsibility for some damages and acknowledged deductions should be made from amount owed - No appearance by respondent - Applicant's evidence accepted - Arrears due and owing - COSTS - Applicant sought costs associated with claim - Costs awarded
Result:
Application granted ; Arrears of wages and holiday pay ($1,183) ; Costs in favour of applicant ($250) ; Disbursements ($70)(Filing fee)
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Moore v Real World Ltd
5 Nov 2007, P Montgomery, CA 129/07, (3 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought unpaid wages, holiday pay and reimbursements of expenses - Respondent did not dispute claim but did not pay outstanding amount when claimed it would - Arrears due and owing - COSTS - Applicant claimed costs of $1,350 - Costs reasonable in circumstances - Manager
Result:
Application granted ; Arrears of wages ($7,213.64) ; Arrears of holiday pay ($1,236.60) ; Expenses ($1,057.80) ; Costs in favour of applicant ($1,350) ; Disbursements ($70)(Filing fee)
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Murray v Godley House Ltd
20 Nov 2007, P Montgomery, CA 141/07, (5 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Respondent previously called meeting to discuss applicant's performance - Parties agreed on steps to help next big night but to little avail - Second meeting held and applicant alleged dismissed - Respondent claimed applicant resigned before issues could be discussed - Credibility finding in favour of respondent - Applicant resigned - No personal grievance - COSTS - Applicant in receipt of legal aid - But for legal aid, Authority would have awarded $1,700 costs to respondent - Respondent's costs award limited to $50
Result:
Application dismissed ; Costs in favour of respondent ($50)
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Patterson v Avalon Ltd t/a Rosebank Winery
31 Aug 2007, P Cheyne, CA 108/07, (5 pages)
UNJUSTIFIED DISMISSED - No appearance by respondent - Applicant criticised after used telephone at work - Later suspended and respondent indicated it did not want her back at work - Applicant raised grievances in relation to suspension and apparent dismissal - Respondent's response did not attempt to say applicant not dismissed - Circumstances amounted to sending away - Dismissal unjustified - Suspension not dealt with separately, although also unjustified - Remedies - Authority accepted applicant probably more affected by events than others might be because of pre-existing health problem - ARREARS OF HOLIDAY PAY - Applicant worked briefly for respondent in 1999 before commencing regular employment following year - Discontinuous periods of employment - First obligation to pay holiday pay arose when first period of employment ended - Claim relating to first period of employment unsuccessful as recovery proceedings not initiated within six year limitation period - Holiday pay due and owing for second period of employment, including alternative holidays and time and a half payments - Interest 10 percent - COSTS - Length of investigation meeting not specified - Costs in applicant's favour
Result:
Application granted ; Reimbursement of lost wages ($1,460.85) ; Compensation for humiliation etc ($10,000) ; Arrears of holiday pay ($2,153.99) ; Interest (10%) ; Costs in favour of applicant ($750)
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Rose v Rodney Economic Development Trust
26 Feb 2008, R A Monaghan, AA 4A/08, (2 pages)
COSTS - Unsuccessful personal grievance - Length of investigation meeting not specified - Respondent sought reasonable contribution to total costs of $10,747 - Applicant submitted unable to meet any costs - Evidence produced to show applicant's financial position however, Authority felt not enough information to persuade them that applicant would be unable to meet any award at all - Applicant to contribute to respondent's costs
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Smith v Engineering & Technical Recruitment Ltd and Anor
26 Feb 2008, R A Monaghan, AA 1A/08, (4 pages)
COSTS - Partially successful personal grievance - Partially successful breach of contract counterclaim - Length of investigation meeting not specified - Each party sought costs - Authority found both parties contributed to delays - No single, fully successful party - However, first respondent substantially successful party - Authority deemed $4,000 an appropriate contribution to costs if one party had been successful on all matters - As matter of who successful party was not clear cut, $4,000 contribution to costs should be allocated accordingly - Outcome of balancing contribution was award of $750 to first respondent
Result:
Costs in favour of respondent ($750)
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Stott v Redvale Canine Centre Ltd
29 Feb 2008, L Robinson, AA 34A/08, (4 pages)
COSTS - Partially successful personal grievance - One day investigation meeting - Respondent sought contribution of two thirds of total costs of $8,370 plus disbursements - Applicant made offer to settle costs but was rejected by respondent - Although applicant did not receive remedies for unjustified dismissal, did not mean respondent to be regarded as successful party for costs - Neither party to have costs against the other
Result:
Costs to lie where they fall
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Taylor v Mai Media Ltd
21 Nov 2007, M Urlich, AA 365/07, (4 pages)
COMPLIANCE ORDER - Applicant sought compliance with record of settlement and interest on outstanding amount - Respondent failed to pay agreed sum by agreed date - Payment made after present application lodged with Authority - No grounds to make compliance order - No sum for judgment given, so no basis upon which Authority could order interest - PENALTY - Respondent claimed failed to pay as expected funds unavailable and number of unexpected financial difficulties arose - Availability of funds not relevant to whether breach of agreement amounted to wilful breach - No evidence respondent took any steps to pay agreed sum, or explain to applicant why it would not be paid on time - Failures amounted to wilful breach of agreed terms - Penalty of $500 appropriate - COSTS - Less than one day investigation meeting - Applicant entitled to $1,000 contribution to costs
Result:
Application dismissed (Compliance, Interest) ; Application granted (Penalty) ; Penalty ($500)(Payable to applicant) ; Costs in favour of applicant ($1,000) ; Disbursements ($70)
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Taylor v Review Publishing Co Ltd
4 Dec 2007, M Urlich, AA 131B/07, (2 pages)
PRACTICE AND PROCEDURE - Quantum of remedies - Authority had ordered reimbursement of lost wages - Parties unable to agree on calculation - Quantum specified by Authority - Interest 9 percent
Result:
Quantum specified ; Arrears of wages ($6,161.12) ; Interest (9%) ; Costs in favour of applicant ($250)
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Thomson v New Zealand Ruby Rock Ltd
27 Feb 2008, H Doyle, CA 18/08, (3 pages)
COSTS - Successful personal grievance - Less than ½ day investigation meeting - Applicant sought costs of $2,900 including GST and disbursements - No good reason not to make award of costs in favour of applicant - Applicant entitled to fair and reasonable contribution to costs - Applicant's representation spent additional time working on calculation of holiday pay owed by respondent
Result:
Costs in favour of applicant ($2,380); Disbursements ($46.50)(Mileage); ($70)(Filing Fee)
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Zaicek v Circle Financial Management Ltd
27 Feb 2008, L Robinson, AA 61/08, (2 pages)
COSTS - Employment relationship problem did not require formal orders - Respondent sought full costs of $5,084 - Applicant in receipt of legal aid - Neither to have costs against each other
Result:
Costs to lie where they fall
