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Daunton v Pacific Pine Chemicals Ltd
28 Nov 2006, L Robinson, AA 360/06, (7 pages)
PRACTICE AND PROCEDURE - Identity of employer - Applicant accepted position with company to be formed and registered in Fiji, from director of respondent - Entered individual employment agreement ("IEA") with respondent - Worked two months in New Zealand then moved to Fiji - Respondent claimed applicant employed by Fijian company as soon as moved - Fijian company not formed when applicant arrived - Could not have been employed by something that did not exist - Applicant not employed under pre-incorporation contract - Employment agreement with Fijian company not concluded - Respondent maintained time in New Zealand for training and induction only, but IEA not limited in any way - IEA expressly contemplated terms being operative in multiple locations and wording capable of including work in Fiji - IEA not terminated simply by arrival in Fiji or establishment of Fijian company, something more overt required, namely new employment agreement - Applicant remained employed by respondent under terms of IEA - JURISDICTION - Conflict of laws - Whether appropriate jurisdiction for claim New Zealand or Fiji - IEA expressly stated Employment Relations Act 2000 applied - New Zealand law applied to employment relationship problem - Authority had jurisdiction - General manager
Result: Questions answered in favour of applicant ; Parties directed to mediation ; Orders accordingly ; Costs reserved
Infinity Investment Group Holdings Ltd v Walker & Ors
19 Dec 2006, P Cheyne, CA 178/06, (2 pages)
PRACTICE AND PROCEDURE – JURISDICTION - Application for removal to Employment Court – Applicant commenced proceedings against respondents in District Court to recover under loan agreement – Respondents claimed matter employment relationship problem within exclusive jurisdiction of Authority - Second respondent alleged loan part of employment agreement with applicant - Both parties submitted important questions of law likely to arise – Authority found questions of law incidental – Matter required inquiry into meaning of written terms in letter of employment, and whether parties agreed to amend terms with loan agreement – Factual inquiry together with dispute as defined in Employment Relations Act 2000 – No important question of law arising other than incidentally – No public interest issues or related proceedings already before Court – Parties submitted large sum in dispute, difficult credibility issues, and tax and accounting issues meant in circumstances Court should determine matter – Joint application most telling factor – However, Authority not persuaded ordinary dispute resolution process provided by Parliament should not be applied – Application for removal declined
Result: Application dismissed ; Costs reserved
Knight & Ors v Transportation Auckland Corporation Ltd & Anor
30 Oct 2006, L Robinson, AA 331/06, (4 pages)
JURISDICTION - Application for removal to Employment Court ("EC") - Respondents claimed Authority had no power to investigate matter - Applicants' Union party to Authority investigation about interpretation of annual leave entitlements in collective employment agreement - EC to hear Union's de novo challenge to Authority's determination - Applicants claimed had no knowledge of basis of challenge and application lodged before aware of challenge - Authority concluded investigation determined matters in dispute between Union, other parties and respondents - Live issues or employment relationship problem no longer existed - Could be nothing to transfer to EC - Further, applicants' Union party to challenge - Substantive issue would be heard de novo, therefore substantive issue already before EC - Most significantly, none of applicants were parties to previous investigation - Authority understood applicants precluded from asking matter be removed or determination challenged given had "no standing" - If applicants sought to be heard independently from Union it would be best heard by EC - Consideration given to whether present application really one for "rehearing" - Discerned no proper grounds for rehearing, however, was not a conclusive determination - Problematic that parties to substantive issue did not know of present application or one for rehearing - De novo challenge process ought to run its course so that substantive matter judicially decided - Authority declined to pursue present application as one for rehearing - If still desirous of rehearing after hearing of challenge, applicants could assess whether to pursue new application with benefit of Court's findings, on notice to affected parties, and with properly specified grounds - Authority declined to investigate matters - No formal orders
Result: Application dismissed ; Costs reserved
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)
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