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Association of Staff in Tertiary Education: Te Hau Takitini o Aotearoa v Webster (Chief Executive of Unitec Institute of Technology)
30 Oct 2006, R Arthur, AA 330/06, (10 pages)
COMPLIANCE ORDER - Applicant sought compliance with consultation provisions in collective employment agreement ("CEA") - Alleged decision to withdraw diploma course outside terms of staffing review and respondent failed to honour CEA - Applicant also claimed should have been consulted on decision to relocate computer classes - Respondent claimed staffing review conducted in accordance with CEA and relocation not a review of type contemplated by CEA, but applicant had input anyway - Whether review "may" result in "significant" changes and invoke operation of CEA to be assessed objectively by effect on staff - Effect need only be possibility, not as high as likelihood - Respondent did not meet requirements of statutory duty of good faith, CEA or its own policies when decided to withdraw course - Position on Diploma's future beyond scope of terms of reference - Only few days allowed for submissions before proposal adopted on misleading basis adequate consultation had occurred - Diploma proposal a significant change and within circumstances contemplated by CEA - Respondent also failed to comply with CEA before decided to relocate classes - Proposal of type that triggered CEA consultation requirements - Consultation requirements not met simply because staff told of proposal were union members - Respondent also failed to appreciate distinction between employee's who were union members giving feedback as managers, and union feedback - CEA required respondent to do more than rely on employees to notify important issues to applicant's national office - Applicant's evidence on practices of other parties to same CEA not relevant - Respondent ordered to comply with CEA - GOOD FAITH - Counterclaim - Authority made no findings on respondent's complaint applicant did not act in good faith during staffing review - However, commented that delaying responses or seeking ever more detailed information may be inconsistent with good faith
Result: Application granted ; Compliance ordered ; Counterclaim dismissed ; Costs reserved
McCarthy v Centurion GSM Ltd & Anor
31 Oct 2006, R Arthur, AA 334/06, (3 pages)
PRACTICE AND PROCEDURE - Application by respondents for return of particular document - Applicant made copy of document while employed by first respondent - Sought to use document in support claim for unjustified dismissal and compensation for loss of shareholding rights - Document reported first respondent's revenue stream and valued its business - Applicant claimed contents relevant to values of shares in compensation claim - Respondents disputed that shareholding rights capable of compensation, and claimed shares not part of employment relationship - Although shareholding issues to be determined, Authority satisfied applicant not entitled to take copy, particularly given did not inform either of respondent's directors - Making copy and keeping it following dismissal breached implied duties of trust, confidence and fidelity in employment agreement - Also had ongoing duties of confidentiality in respect of truly confidential information - Applicant submitted former employees/directors had copies of document and wrongfully disclosed it to third parties - Did not change or diminish applicant's duties - In any event, applicant provided no real evidence of such disclosures - Compliance order appropriate in circumstances - Copy of document to remain sealed on file at Authority and not opened or disclosed without reference to Authority Member - Document to be referred to if necessary and relevant to substantive determination - Order would not disadvantage applicant at Authority, or if pursued claims in Employment Court or civil courts - Each forum enabled parties to obtain relevant documents - If needed applicant should obtain copy through proper procedures - Respondents protected if document released through proper process for that purpose, meaning document may only be used for that proceeding and no other improper collateral purpose - Order requiring applicant return document, not to make further copies, and not to disclose contents of document to third parties
Result: Order in favour of respondent ; Compliance ordered ; Costs reserved
McRae v The $2 Shop Ltd
2 Jul 2007, L Robinson, AA 132A/07, (2 pages)
COMPLIANCE ORDER – Applicant sought compliance with mediated record of settlement – Respondent asked Authority to make enquiries directed at exposing criminal conduct by applicant – Submitted conduct would have precluded any settlement that awarded compensation – Also submitted matters relevant to exercise of discretion to grant compliance, and Authority’s equity and good conscience jurisdiction enabled it to temper s149(3) Employment Relations Act 2000 ("ERA") – Authority declined to make enquiries sought – Considered s149(3) ERA clear record of settlement could not be cancelled – Provision founded on clear policy to give greater certainty of outcome in mediated settlements – Section 149(3) uncompromising not only to discourage aggrieved party from seeking perceived better resolution on enforcement but also because prospect of cancellation would render such settlements largely redundant – Declined to enquire into inchoate allegations, therefore no foundation to take allegations of improper conduct into account in exercising discretion to grant compliance – Authority concluded must act to uphold and recognise integrity of record of settlement – Declined to adjourn matter – Compliance ordered
Result: Compliance ordered ; No order for costs
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