Practice & Procedure - Employment Relations Act 2000
Chamberlain v ASB Bank Ltd
13 Feb 2008, M Urlich, AA 44/08, (3 pages)
PRACTICE AND PROCEDURE - Admissibility of evidence - Applicant alleged resigned after bank offered to pay him gratuity - Respondent submitted applicant rejected its offer by way of counter-offer contained in letter to- Letter made on without prejudice save as to costs basis - Whether letter admissible - Respondent argued without letter Authority would be misled or deceived - Also, applicant had attached respondent's without prejudice reply to statement of problem - Submitted without applicant's letter the reply could be misunderstood - Applicant contended letter not counter-offer but response to without prejudice meeting where he was invited to confirm remedies he sought - Authority held if applicant intended to argue resignation amounted to acceptance of respondent's initial offer then letter must be admitted - Whether contents amounted to counter-offer to be determined following investigation of substantive issues - To omit letter would deprive Authority of opportunity to consider all relevant evidence - Evidence to be admitted
Result:
Orders accordingly ; No order for costs
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The Former Crew of MFV "Aleksandr Ksenofontov" v DV Ryoprodukt Ltd
5 Nov 2007, J Crichton, CA 130/07, (2 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Applicants sought compliance with earlier Authority determination - Determination subsequently challenged to Court but matter not yet heard - Applicants argued convenient for Court to be seized of all relevant matters - Respondent consented to removal - Matter removed to Court
Result:
Application granted ; Orders accordingly ; No order for costs
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Hertel v GCB Construction Ltd & Ors
18 Sep 2007, A Dumbleton, WA 57A/07, (6 pages)
PRACTICE AND PROCEDURE - Applicant sought to have question of third applicant's personal liability determined - Authority reserved question in earlier determination which found first respondent owed applicant bonus - Second and third respondents directors of first respondent - Applicant owed bonus when respondents sold business to third party, which denied liability for bonus payment - Third respondent had given personal undertaking to applicant, but later resiled from it - Although applicant not party to sale and purchase agreement between first respondent and third party, potentially had remedy against them under s4 Contracts (Privity) Act 1982 - However, outside Authority's jurisdiction - Arguable as "hands and minds" of first respondent, directors instigated, aided or abetted breach of employment agreement - However, remedy for breach was penalty and would not allow applicant to recover bonus - Labour Court had ordered compliance against a company director personally, requiring him to use position of control to ensure company liability met but not ordering him to make payment form own pocket - Authority to further investigate grounds for ordering compliance by third respondent - If grounds found to exist Authority would consider making order of its own motion - Third respondent would be required to attend hearing and produce records relating to family trust, first respondent, and another company incorporated by him around time first respondent sold - Parties advised to attend mediation before investigation resumed
Result:
Orders accordingly ; No order for costs
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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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Klenner t/a Glorit Farms v Macdonald
12 Mar 2008, Y S Oldfield, AA 90/08, (2 pages)
CONSENT ORDER - PRACTICE AND PROCEDURE - Application to reopen investigation - Matters disposed of by earlier determination - Applicant (originally respondent) alleged did not receive notice of investigation meeting and wanted opportunity to be heard - Respondent (original applicant) consented to matter being reopened - Orders accordingly
Result:
Consent order granted ; Orders accordingly ; No order for costs
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Leonard v Burke
10 Mar 2008, V Campbell, AA 80/08, (3 pages)
PRACTICE AND PROCEDURE - Applicant sought arrears of wages and holiday pay - No appearance by applicant - Application dismissed - Authority commented on identity of employer - Respondent claimed not applicant's employer - Written employment agreement stated applicant employed by trust - In resignation letter, applicant stated resigning from employment with trust - Applicant aware employed by trust, not respondent personally
Result:
Application dismissed ; Orders accordingly ; No order for costs
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Ogilvy New Zealand Ltd v Watkins
22 Jan 2008, M Urlich, AA 16/08, (4 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Applicant sought rectification and/or variation of parties' employment agreement under common law or Contractual Mistakes Act 1977 - Investigation delayed by related District Court proceedings - Applicant claimed important question of law likely to arise relating to application of principles of rectification in respect of terminated individual employment agreement - Submitted in all circumstances Court should determine matter - Respondent opposed removal - Contended question of law not important and application of principles settled - Submitted if matter removed would have no right of challenge except on questions of law - Rectification of expired collective employment agreement considered by Court, but no authority for individual employment agreements - Issue central to applicant's claim - Important question of law not incidental to matter - Matter removed to Court
Result:
Application granted ; Orders accordingly ; No order for costs
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Owen v You & Me Ltd
19 Dec 2007, A Dumbleton, AA 404/07, (7 pages)
PRACTICE AND PROCEDURE - Applicant sought to have employment relationship problem heard by Authority - Felt did not have proper opportunity to air complaints during mediation - Respondent claimed matter settled at mediation - Parties consented to waive confidentiality in mediation for present Authority investigation - Parties reached oral agreement at mediation - Applicant later refused to sign record of settlement until respondent provided evidence of preschool operating licence - Production of licence not agreed term of settlement - Applicant's attempt to impose further condition not act of good faith - Without applicant's signature mediator could not sign settlement - Parties taken to have intended resolution of employment problem would not be completed or perfected until both phases of s149 Employment Relations Act 2000 completed - Second phase, signed record of settlement, not completed - Although mediator's signature not required for settlement, lack of it meant terms not final, binding, or enforceable by parties - To extent Authority considered applicant had not acted in good faith, it did not bar her from having Authority resolve employment relationship problems - Supervisor
Result:
Orders accordingly ; Costs reserved
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Pearce v Mane Hair and Beauty (2007) Ltd
27 Mar 2008, R A Monaghan, AA 114/08, (3 pages)
COMPLIANCE ORDER - Applicant sought compliance with record of settlement - Respondent had not made payments to applicant as agreed - Claimed financial position prevented it making lump sum payments - Offered to pay by instalments, already made one payment in this manner - High threshold to be reached before could be said employer's financial position "required" order for payment by instalments - While material provided by respondent showed business struggling, Authority not persuaded situation so serious order for payment by instalments required - Compliance ordered - PRACTICE AND PROCEDURE - Applicant also invited Authority to consider penalties - Not appropriate to raise new claims for first time in submissions - Open to applicant to seek penalties, but matters not within scope of present determination
Result:
Compliance ordered ; No order for costs
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Proffitt v Chief Executive, Department of Labour
11 Mar 2008, Y Oldfield, AA 83/08, (18 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Applicant's employment relationship problem had two parts - First part, an unjustified disadvantage grievance, determined by Authority in respondent's favour - Decision challenged by applicant and awaiting hearing - Second part of problem not clearly identified - Related to alleged obligation on respondent to renegotiate terms of employment at conclusion of first 30 days of employment, progression through pay scales, and arrears claim - Applicant sought removal on grounds Court already had before it proceedings between the parties involving the same or similar or related issues - Submission matters "similar" as related to same employment agreement rejected - Criteria in s178(2)(c) Employment Relations Act 2000 not met - Second part of problem had evolved over time and uncertain whether live jurisdictional issues - Authority unable to say important question "likely" to arise - However, taking into account all circumstances, including length of time since problem filed and indication from applicant any determination likely to be challenged, Authority considered final resolution of problem would be expedited if all aspects placed before one forum - Matter removed to Court - Several attached Authority Minutes detailed applicant's unsuccessful attempts to have matter "suspended" or adjourned, and request Authority Member recuse herself
Result:
Application granted ; Orders accordingly ; Costs reserved
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Rillstone v Product Sourcing International 2000 Ltd
7 Jun 2007, R Arthur, AA 167/07, (16 pages)
PRACTICE AND PROCEDURE - Authority concluded respondent waived privilege in legal advice from previous advisor by referring to content of advice in witness statements - Non-publication order made in relation to evidence of respondent's budgets and accounts - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Redundancy - Respondent claimed applicant accepted new position with different job content and lower salary, but chose to end her employment - Applicant told her position to be disestablished but would continue to be employed in sales role with lower salary but greater incentives - Later given notice of redundancy and told could apply for sales role - Applicant's evidence did not accept new role preferred - Whether redundancy genuine - Respondent faced genuine commercial pressures - However, new position not sufficiently different to break continuity of employment - Any requirement for change in direction or emphasis on sales well within express terms of applicant's employment agreement - Redundancy not genuine - Clear respondent considered really dealing with performance issues - Email from advisor suggested redundancy shorter process than performance management and simply having lower salary would make new role different, a view Authority considered inconsistent with established law - Employment agreement provided for redundancy where position superfluous to needs of employer, taken to refer to work to be done, not solely salary paid for it - Emphasis on reducing applicant's salary evident in respondent's evidence - Mixed motives for redundancy - Dealing with performance issues predominant purpose - Dismissal also procedurally unfair - Dismissal unjustified - Actions of respondent in purporting to make position redundant and seek applicant's acceptance of new position at lower salary amounted to failure to act in good faith and unjustified disadvantage - Remedies - Insufficient evidence to establish applicant entitled to bonus payment - Merchandiser
Result:
Application granted ; Reimbursement of lost wages ($32,307.69)(14 weeks) ; Compensation for lost benefit (Clothing allowance)($1,346.15) ; Compensation for humiliation etc ($5,000) ; Costs reserved
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Saleh v Encos Global Systems Ltd
4 Jul 2007, P Cheyne, CA 73/07, (11 pages)
JURISDICTION - Whether employee or independent contractor - Applicant initially engaged as contractor and invoiced respondent through his company - Applicant claimed subsequently offered full time employment by director - However, respondent provided copy of email from general manager inviting applicant to sign employment agreement - Applicant's response made it clear parties' relationship was through his company, not employment, and assured respondent operating own business and did not want to change - Evidence applicant not asked to commit all time to respondent accepted and applicant did other work - Applicant provided with contractor agreement but did not sign it as accountant advised him would be to his advantage "if things got messy" - Some measure of integration - Applicant enjoyed significant degree of flexibility over how worked - Treated money received from respondent as income from operation of business - Applicant intended contractor relationship and common intention arose after email exchange with respondent - Just to determine applicant never engaged as employee - Independent contractor - No jurisdiction - Claim and counterclaim dismissed - PRACTICE AND PROCEDURE - After investigation meeting, applicant alleged respondent altered emails provided as evidence to Authority - Authority unconvinced anything sinister in differences between printed emails - Not probable respondent tampered with emails as alleged - Order prohibiting publication of respondent's commercial information disclosed during investigation - Creative director
Result:
Application dismissed ; Counterclaim dismissed ; Orders accordingly : Costs reserved
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Service and Food Workers' Union Nga Ringa Tota Inc v Air New Zealand Ltd
26 Oct 2007, A Dumbleton, AA 314A/07, (3 pages)
PRACTICE AND PROCEDURE - Applicant's earlier request for compliance orders adjourned for seven days to allow respondent to provide report on corrective actions it planned to take - Although grounds on which compliance could be ordered, in view of corrective action proposed by respondent and general consensus about suitability of that action, unnecessary to impose remedy - Correspondence to be sent voluntarily by respondent to relevant employees, drawing attention to earlier incorrect advice and providing correct information on applicant and collective employment agreement - Investigation concluded
Result:
Orders accordingly ; Costs reserved
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Stone v Villages of New Zealand (Pakuranga) Ltd
18 Dec 2007, V Campbell, AA 388A/07, (2 pages)
PRACTICE AND PROCEDURE - Supplementary determination - Authority awarded applicant arrears of wages - Although sought by applicant, interest not considered in substantive determination - Appropriate to award interest on amounts ordered - Applicant had not provided explanation for delay in filing problem with Authority - Interest ordered from date problem filed - Interest 8 percent
Result:
Orders accordingly ; Interest (8%) ; No order for costs
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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
18 Dec 2007, H Doyle, CA 143A/07, (2 pages)
PRACTICE AND PROCEDURE - Quantum of remedies - Authority previously set out appropriate method of calculating holiday pay in circumstances where there had been entitlement to holidays and then employment had ended before further entitlement - Applicant provided calculation as requested - Authority satisfied calculation correct - Arrears of holiday pay due and owing
Result:
Quantum specified ; Arrears of holiday pay ($3,495.73) ; Costs reserved
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White v Auckland District Health Board
21 Feb 2008, Chambers, O'Regan and Arnold JJ, CA 607/07, (1 pages)
COURT OF APPEAL - Practice and procedure - Application for leave to appeal against Employment Court decision - Employment Court declined to award successful party costs to reflect contributory conduct and as element of setting appropriate remedies - HELD - Leave granted on question of whether Employment Court's approach to costs was correct - Application granted
Result:
Application granted (leave to appeal) ; Costs reserved
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Yang v Allen
21 Nov 2007, V Campbell, AA 182A/07, (4 pages)
PRACTICE AND PROCEDURE - Application to reopen investigation - Previous determination found respondent unjustifiably dismissed and awarded remedies - Applicant now claimed respondent not employed by her personally, but by her company - Respondent opposed application - At no time had applicant suggested to either respondent or Authority she was not employer - Employment agreement identified employer as applicant, not company - Applicant assisted by Department of Labour interpreter - Applicant's submission had extremely poor grasp of English and had not communicated effectively with Authority on issue rejected - However, Authority could not rule out possibility of miscarriage of justice if investigation not reopened on narrow question of identity of employer
Result:
Application granted ; Orders accordingly ; Costs reserved
