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Bell v Board of Trustees, Cambridge High School
23 May 2007, V Campbell, AA 70A/07, (2 pages)
COSTS - Successful personal grievance - Length of investigation meeting not specified - Applicant not represented at Authority but sought $1,994 for legal costs incurred prior to investigation meeting - Costs related to mediation undertaken prior to matter being properly before Authority - Unable to order contribution to those costs - However, applicant entitled to reimbursement of filing fee
Result: Disbursements in favour of applicant ($70)(Filing fee)
Cunneen v Shore Foods Ltd
4 Apr 2007, RA Monaghan, AA 34A/07, (2 pages)
COSTS - Unsuccessful personal grievance - Half day investigation meeting - Respondent sought costs of $4,522 - Successful party entitled to contribution to costs - No need to depart from usual range of costs for half day investigation meeting - Applicant to pay contribution to costs incurred by respondent
Result: Costs in favour of respondent ($1,000)
Edwards v Regent Training Centre Ltd
3 Jul 2007, R A Monaghan, AA 154A/07, (2 pages)
COSTS - Partially successful personal grievance - Less than one day investigation meeting - Applicant sought $3,000 contribution to costs - Relied on concerns about respondent's willingness to settle - Respondent submitted costs should lie where they fall - Calderbank offer did not assist Authority as unlikely to have left applicant in better position - Submissions from parties on whether respondent took unrealistic stance when attempting to negotiate settlement - Arguments of that kind could only be pursued to very limited extent and tended to focus on evidence of bad faith - In most cases, only very limited evidence available as to content of negotiations - On limited evidence available Authority considered it likely both parties' stances affected by views of merits - Entitled to take those views and assume any resulting litigation risk - Authority could not take matter further - Matter relatively uncomplicated - Modest award in applicant's favour
Result: Costs in favour of applicant ($1,000)
Greenwood v Vodaphone New Zealand
29 Mar 2007, YS Oldfield, AA 22A/07, (2 pages)
COSTS - Partially successful personal grievance - Two day investigation meeting - Applicant submitted total costs of $10,876 plus disbursements reasonable for matter - Respondent argued applicant only successful in small part of case, with most of investigation focusing on bullying allegation that was entirely rejected - Respondent claimed disadvantaged in responding to allegations as basis for unjustified disadvantage not specifically referenced in pleadings - Respondent submitted its costs were $12,000 and suggested costs lie where they fall - Applicant's case clearly presented and respondent on notice of all concerns and evidence - Authority not aware respondent suffered additional costs due to way case conducted - Respondent should not be made to contribute to costs applicant incurred pursuing losing argument - Authority weighed both parties costs and levels of success - Fair contribution to applicant's costs $5,000 - Authority aware net result for applicant effectively nil, but satisfied outcome fair given partial success of respondent and monies it had to pay
Result: Costs in favour of applicant ($5,000)
Gulf Rubber NZ Ltd & Anor v NZ Amalgamated Engineering, Printing & Manufacturing Union
24 Jul 2007, M Urlich, AA 217/07, (4 pages)
COSTS – Applicants sought costs associated with withdrawn application – Original application alleged breaches of good faith – Applicants withdrew application when respondent withdrew bargaining notices and sought contribution to total costs of $6,555 - Submitted put to unnecessary expense by respondent as it had opportunity to resolve matter at very early stage – Alleged prepared for mediation that was subsequently abandoned – Respondent submitted withdrawal of bargaining notices not acceptance of wrongdoing – Argued until Authority inquired into and determined issues in statement of problem no basis for costs award – Parties not directed to mediation by Authority – Situation not akin to “11th hour” withdrawal – No witness statements or supporting documents filed – No evidence any costs unnecessarily incurred for purposes of scheduled investigation meeting – If matter had been determined any award of costs against respondent would have flowed from finding of unlawful conduct – No findings made as to conduct – No basis upon which Authority could award costs – Application dismissed
Result: Application dismissed
Gutsell v Koru Blue Ltd t/a Airport Lodge Motel
11 Dec 2006, J Crichton, CA 146A/06, (3 pages)
COSTS – Successful personal grievance – Less than one day investigation meeting - Applicant sought contribution to total costs of $6,500 plus disbursements – Alleged application required significant legal research into vulnerable employment – Authority Member who investigated claim different from Member deciding costs - Substantive determination dealt with matter in under four pages – Decision turned on applicant's legal status - Claim of legal complexity not made out – Respondent considered $750 costs appropriate and argued applicant’s costs unreasonably inflated by unnecessary work – Respondent referred to previous Member's decision to give preliminary view of matter and encourage parties to settle - Claimed negotiations conducted on open basis and included actual amounts discussed in costs submission - Applicant objected and claimed discussion without prejudice - Asked costs be referred to another Member - Authority support staff had provided Member with copy of submissions with appropriate numbers blanked out - Nothing turned on issue as Member had no way of knowing whether discussion without prejudice and not influenced by numbers to which he had no access - Appropriate to award applicant $1,000 costs
Result: Costs in favour of applicant ($1,000)
Haugh v Wired Communications Ltd
8 Dec 2006, J Crichton, CA 172/06, (2 pages)
COMPLIANCE ORDER - Applicant sought compliance with mediated Record of Settlement - No appearance for respondent - No reasonable excuse for respondent to avoid filing statement in reply and its obligation to participate in Authority's process - Settlement required respondent to pay $4,000 in eight instalments to applicant - Respondent failed to make final four scheduled payments - Authority satisfied respondent had not complied with settlement and sum of $2,000 owing - Compliance ordered within 14 days of determination - Interest 7 percent on outstanding balance - PENALTY - Applicant sought penalty in terms of s149(4) Employment Relations Act 2000 - Appropriate case to award penalty in respect of breach of mediated settlement - Penalty ordered - COSTS - Applicant entitled to contribution to costs of $750, plus filing fee
Result: Application granted ; Compliance ordered ; Interest (7%) ; Penalty ($500)(Payable to applicant) ; Costs in favour of applicant ($750) ; Disbursements ($70)(Filing fee)
Iles v Dry Run Holdings Ltd
27 Oct 2006, GJ Wood, WA 147/06, (4 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Respondent registered in New Zealand but run in Australia - Signed employment agreement stated relationship between applicant and franchise trading name PH - Respondent employer at time of termination - Clearly breach of good faith and likely to be misleading if employer failed to describe actual name of employer - PH sold to D - Representatives of D arrived at applicant's store and told staff store closing in two days, and could apply for jobs with D - PH did not contact staff to explain what would happen or give notice - Respondent's director claimed sale and purchase agreement had condition D would take over responsibility for employees on sale, and sale confidential - No evidence provided of agreement - Trite law employer could not transfer employees to new employer without specific approval - Such approval not sought or gained in this case - Would not have been productive to direct mediation - Applicant's dismissal was effect of sale of franchise - Positions offered by D all significant distance away store - Applicant acted reasonably in declining to apply for position - Failed to consult in redundancy situation and pay notice - Unjustified disadvantage - Genuine redundancy as whole business sold - Dismissal justified - Remedies - Compensated for failure to consult and give notice - ARREARS OF WAGES - Applicant not paid final week's wages or payment in lieu of notice - Should have been given two weeks notice - Wages due and owing - COSTS - Applicant assisted by community law centre - Length of investigation meeting not specified - Filing fee only expense incurred - Respondent to reimburse filing fee - Length of service five years four months - Fast food worker
Result: Application granted (Unjustified disadvantage, arrears of wages) ; Application dismissed (Unjustified dismissal) ; Arrears of wages ($840) ; Compensation for humiliation etc ($3,500) ; Disbursements in favour of applicant ($70)(Filing fee)
Jeong v Hanyang Corporation Ltd
15 Mar 2007, J Scott, AA 77/07, (2 pages)
COSTS - Partially successful personal grievance - Less than one day investigation meeting - While applicant unsuccessful in number of claims, did succeed with one significant claim - Calderbank offer made to applicant for exactly same amount as awarded as compensation by Authority - However, applicant succeeded to greater extent than total amount of Calderbank offer as also received lost remuneration, albeit modest amount - Calderbank offer disregarded - Some account had to fact respondent's costs unreasonably added to as had to defend itself against patently meritless claims - In particular Authority noted claim no written employment agreement - Applicant complicit in breach and claim should not have been brought - Low level costs in favour of applicant appropriate
Result: Costs in favour of applicant ($1,000)
Kiely v Air New Zealand Ltd
24 May 2007, L Robinson, AA 113A/07, (2 pages)
COSTS - Successful personal grievance - One day investigation meeting - Costs to applicants union were $4,860 plus disbursements - Applicant submitted respondent did not adopt constructive approach to resolving problem - Respondent submitted case provided benefit for both applicant, union and respondent in form of guidance on reimbursement for lost personal effects - Also submitted applicant was non compliant with Authority's directions discourteous to respondent - Authority agreed determination provided some guidance and timetables not closely followed - Respondent and Authority had prepared for witness that did not attend - Lower daily tariff appropriate
Result: Costs in favour of applicant ($1,500)
Miller v Auckland Cat Practice Ltd
27 Mar 2007, L Robinson, AA 51A/07, (2 pages)
COSTS - Successful personal grievance - Less than one day investigation meeting - Applicant sought contribution to costs of $2,945 plus filing fee - Respondent argued applicant's case largely inefficient and distracting - Submitted willing to contribute $1,500 to costs - Authority derived much assistance from applicant's presentation of case - No reason to depart from rule costs follow event - Respondent to pay applicant contribution to costs
Result: Costs in favour of applicant ($2,070)
Mr I v Mr C
18 Jun 2007, L Robinson, AA 138A/07, (2 pages)
COSTS – Successful personal grievance – One day investigation meeting – Applicant sought total costs of $8,560 – Respondent submitted any award of costs ought to be minimal and substantially reduced for contribution – Further submitted award at lower end of Authority’s daily tariff appropriate but reduced by contribution – Applicant to be regarded as successful party in obtaining resolution of problem in his favour and should have contribution to costs – Section 124 Employment Relations Act 2000 permitted reduction in “remedies” for personal grievances - Award of costs not a remedy as described in s124 – Authority declined to reduce costs award for contribution - Not persuaded to depart from daily tariff approach – Applicant entitled to contribution to costs of $3,000
Result: Costs in favour of applicant ($3,000)
Mudge v Botany Plastics Ltd
18 May 2007, L Robinson, AA 109A/07, (2 pages)
COSTS - Successful personal grievance - One day investigation meeting - Applicant sought contribution of $3,000 to total costs of $6,034 - Respondent requested $1,137 be deducted for costs incurred for mediation that did not proceed - Only applicant's costs relevant - No reason to depart from conventional tariff
Result: Costs in favour of applicant ($2,000)
Perry v Tom Ryan Cartage Ltd
22 Jun 2007, J Crichton, CA 53A/07, (3 pages)
COSTS - Successful personal grievance - 1½ day investigation meeting - Applicant sought contribution of $5,500 to total costs of $6,053 including disbursements - Respondent sought to limit contribution to $500 and made observations about unhelpful approach adopted by applicant's advocate - Both advocates had obligation to engage with each other on professional basis and must bear part of blame for inability to develop relationship - Appropriate award of costs to applicant in circumstances $3,000
Result: Costs in favour of applicant ($3,000)
Purcell v Wired Communications NZ Ltd
29 Jun 2007, P Cheyne, CA 71/07, (4 pages)
UNJUSTIFIED DISMISSAL – Redundancy - No appearance by respondent – Applicant's evidence accepted - Dismissed without notice or warning when told by payroll no further work – Applicant attempted to contact director but he did not return calls – Appeared business had not traded since applicant dismissed, although apparently some staff working for another business run by director – Even (perhaps especially) in case of apparent business failure, employees entitled to fair and reasonable treatment – Dismissal unjustified - Remedies - No written employment agreement specifying notice - Reasonable notice fixed at four weeks - ARREARS OF WAGES AND HOLIDAY PAY - Applicant not paid at agreed rate - Also not paid last week's wages or holiday pay - Monies due and owing - COSTS - Length of investigation meeting not specified - Length of service 14 weeks
Result: Application granted ; Compensation for humiliation etc ($10,000) ; Wages in lieu of notice ($1,300)(Four weeks) ; Arrears of wages ($1,300) ; Arrears of holiday pay ($273) ; Costs in favour of applicant ($1,500)
Scenario Communications Ltd v Bailey
18 Jun 2007, GJ Wood, WA 54A/07, (2 pages)
COSTS - Successful breach of contract - Length of investigation meeting not specified - Applicant sought contribution to costs of $5,068 plus disbursements of $1,374 - Respondent submitted costs should lie where they fall because of Calderbank offer - Submitted applicant's representatives hourly rate excessive, claim only partially successful and no evidence produced of new breaches by respondent - Calderbank offer disregarded because penalties against respondent taken into account - Costs to applicant of $2,000 - Not appropriate for respondent to pay for travel costs of principal of applicant - Costs of serving witnesses appeared particularly high
Result: Costs in favour of applicant ($2,000) ; Disbursements ($255)
Semmens (Labour Inspector) v SDP Call Centres Ltd
27 Oct 2006, D Asher, WA 145/06, (9 pages)
JURISDICTION - Applicant Labour Inspector sought determination R an employee - No appearance for respondent - Director claimed unable to prepare and attend investigation meeting due to ill health - Respondent had witness statements and elected not to respond to allegations - Age of R's claims, absence of medical records about director's health, and advice regarding respondent's poor trading position defeated its implied request matters be "held off" - Not unfair to proceed with investigation meeting - Whether employee or independent contractor - No written employment agreement - Two other ex-employees of respondent pursued similar claims - Claims settled by way of a Authority consent determination - Applicant relied on express terms in consent determination to support claim R an employee - R worked from respondent's premises with set regular work patterns - Remuneration commission based - Not required to invoice for services - Respondent's level of control significant - Evidence showed R, along with other operators, integral part of respondent's business - No evidence in business on own account - Overall picture clearly one of R being full-time employee - No evidence of industry practice telephone operators/telemarketers typically employed on contract for services - No reason to doubt R's evidence, to extent she turned her mind to it, she intended to enter employment relationship - Employee - ARREARS OF WAGES AND HOLIDAY PAY - Applicant entitled to recover minimum wages, annual holiday pay, public holiday pay, and interest - Minimal wage and time records provided despite requests made to respondent - Applicant's estimation of arrears accepted - Holiday pay and wages due and owing - Interest 6 percent - COSTS - Respondent to reimburse filing fee
Result: Application granted ; Arrears of wages ($30,422.52) ; Arrears of holiday pay ($3,264)(Public holiday pay), ($5,461.20)(Annual holiday pay) ; Interest (6%) ; Disbursements in favour of applicant ($70)(Filing fee)
Skeggs v Radius Security Ltd
8 Jun 2007, L Robinson, AA 149A/07, (2 pages)
COSTS - Successful personal grievance - One day investigation meeting - Applicant sought contribution of $8,200 to total costs of $13,646, plus disbursements - Submitted Authority's modest approach to costs should be departed from as he could not have represented himself and no settlement offer made before investigation meeting - Respondent submitted modest costs appropriate - Claimed applicant capable of presenting own brief to Authority, and other issues raised by respondent had little if any effect on meeting length - Applicant not criticised for engaging professional representation - Applicant not given information regarding intended employment agreement - Not right for respondent to now criticise him for engaging representation due substantially in part to its failures - Daily tariff supplemented to recognise this aspect of case
Result: Costs in favour of applicant ($5,000) ; Disbursements ($280)
Stewart v Century 21 Huntly, Morrinsville & Papakura Ltd
13 Jun 2007, V Campbell, AA 129A/07, (2 pages)
COSTS - Successful personal grievance - One day investigation meeting - Applicant sought contribution to total costs of $6,148 - Case not complex and costs incurred reasonable - Respondent to pay reasonable contribution to costs
Result: Costs in favour of applicant ($2,000)
Talakai v Amco Flexibles Ltd
26 Mar 2007, Colgan CJ, AC 14/07, (1 pages)
COSTS – Defendant sought solicitor/client indemnity costs of $3,239.99 plus disbursements of $80.99 – Plaintiff withdrew application for leave to file challenge out of time on date of hearing – Challenge was filed 43 days late – Defendant submitted it had incurred costs of preparation to oppose leave application, plaintiff’s challenge was devoid of merit and delay was gross and not adequately explained – Defendant relied on Reid v New Zealand Fire Service Commission (cited below) which held where losing party had brought unmeritorious claim and persisted despite warnings, further prosecution could involve opposing party in greater additional expense for which it should be compensated – Evidence of written advice from plaintiff’s solicitor that plaintiff unlikely to succeed and should settle – Plaintiff submitted costs claimed by defendant “extraordinarily high” and that challenge was only abandoned because plaintiff was denied legal aid – HELD – Defendants legal expenses of approximately $1,500 were reasonable – Court has considerable discretion in awarding costs, but notional starting point usually two-thirds of costs actually and reasonably incurred – Court not persuaded reduction or uplift required - Costs in favour of defendant ($1,000)
Result: Costs in favour of defendant ($1,000)
Talakai v Amcor Flexibles Ltd
14 Mar 2007, J Scott, AA 72/07, (2 pages)
COSTS - Unsuccessful personal grievance - Length of investigation meeting not specified - Respondent sought contribution of $2,000 to total costs of $8,813 - Applicant submitted nothing exceptional about case and award of $1,000 appropriate - Authority noted applicants not to be discouraged from representing themselves and this did not weigh against applicant - Applicant to contribute to costs
Result: Costs in favour of respondent ($1,500)
Taylor v Review Publishing Ltd
26 Jun 2007, M Urlich, AA 131A/07, (2 pages)
COSTS - Successful personal grievance - Less than one day investigation meeting - Applicant sought full costs of $3285 - Respondent argued no detailed breakdown of work provided and costs incurred by applicant excessive - No grounds for full indemnity costs but applicant entitled to contribution to costs
Result: Costs in favour of applicant ($1,300)
Thompson v Winger Motors Ltd
13 Mar 2007, J Wilson, AA 7A/07, (2 pages)
COSTS - Unsuccessful personal grievance - Less than one day investigation meeting - Respondent's legal costs amounted to $8,000 and sought contribution of at least 50 percent - Applicant submitted respondent's costs excessive - Applicant had limited resources and argued in equity and good conscience Authority should not make order for costs - Case relatively straightforward - Applicant to pay contribution to costs
Result: Costs in favour of respondent ($1,000)
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