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Booker (Labour Inspector) v Storey (t/a The Alteration Shop)
4 Apr 2007, Perkins J, AC 16/07, (1 pages)
PRACTICE AND PROCEDURE – Resumed hearing of application for remedies in default of defendant complying with compliance order issued by Authority – HELD – Court informed amount paid in full – Parties had agreed on costs – Application dismissed
Result: Application dismissed (compliance) ; No order for costs
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
Dholakia v Global Peace New Zealand Trust
20 Dec 2006, M Urlich, AA 372A/06, (2 pages)
PRACTICE AND PROCEDURE – Applicant sought certificate of determination in relation to awards previously made in his favour – Quantum of remedies to be determined - Authority calculated amounts owing
Result: Orders accordingly ; No order for costs
Engineering, Printing and Manufactoring Union & Ors v Borg Industries Ltd
7 Dec 2006, Y Oldfield, AA 370/06, (2 pages)
PRACTICE AND PROCEDURE - Risk of liquidation meant Authority opted for investigation meeting without sending parties to mediation - No appearance by two applicants, MM and PL - Authority took no further action in respect of their claims - However, as investigation meeting set down at very short notice claims not dismissed - MM and PL to advise Authority if wanted to resume claim - ARREARS OF WAGES AND HOLIDAY PAY - Applicant employees laid off without notice - Sought payment in lieu of notice and outstanding holiday pay - Respondent did not dispute WF and IS not paid entitlements - MS owed pay in lieu of notice only - Applicants had not received pay slips and unable to tell Authority gross weekly wage - Respondent to provide wage and time records to applicants' representative - RECOVERY OF MONIES - Applicant union sought remittance of union fees deducted from members wages by respondent - Respondent did not dispute fees owed and stressed unable, rather than unwilling to pay - Parties reminded could attend mediation to discuss arrangements for payment
Result: Application granted ; Arrears of wages (Notice)(4 weeks)(Payable to WF, IS and MS) ; Arrears of holiday pay (2 weeks)(Payable to WF and IS) ; Other monies ($3,955.20)(Union fees)(Payable to union) ; Orders accordingly ; No order for costs
Field v AB Equipment Ltd
19 Dec 2006, P R Stapp, WA 178A/06, (2 pages)
PRACTICE AND PROCEDURE – Application to amend error in Authority costs determination – Authority had deducted $2,000 from reasonable costs for costs associated with mediation - Applicant now produced information showing costs for mediation were $1,000 - Entirely consistent with earlier determination to discount amount deducted for mediation costs – Would increase amount respondent required to contribute to applicant’s costs from $4,000 to $5,000 – Substitution ordered
Result: Application granted ; Orders accordingly ; No order for costs
Gates v Air New Zealand
27 Mar 2007, Travis J, AC 15/07, (2 pages)
PRACTICE AND PROCEDURE – Application for security for costs and stay of challenge until security paid – Alternatively, defendant sought stay until plaintiff had paid costs ordered in Authority either to defendant or the Court – Defendant submitted there was reason to believe plaintiff would be unable to meet defendant’s costs if unsuccessful – Further, that plaintiff’s conduct had caused significant delays and challenge was unmeritorious – HELD – Delays not relevant to application for security – Difficult to make clear assessment of merit, but strike out application would be unsuccessful at present stage – Plaintiff may be prevented from pursuing claim if unable to pay security – Orders for security based solely on impecuniosity likely to be rare, especially where arguable that impecuniosity resulted from dismissal – Statutory rights of grievants, who are often impecunious, to pursue challenges should not be lightly put aside – Arguable that defendant’s actions in dismissal affected plaintiff’s financial situation – No security for costs ordered – Plaintiff prepared to pay costs ordered in Authority into Court – Proceedings stayed until amount paid – Application for security for costs dismissed – Application for order staying proceedings until costs order paid granted
Result: Application dismissed (security for costs) ; Application granted (stay of proceedings until costs order paid) ; Orders accordingly ; Costs reserved
Hardy v Scoopy's Ice Cream Parlour Ltd & Anor
12 Oct 2006, RA Monaghan, AA 319/06, (4 pages)
PRACTICE AND PROCEDURE - Application for joinder - Applicant applied to have proposed second respondent ("SHL") joined as party to grievance proceedings - Whether corporate veil should be lifted - First Respondent ("SICPWL") operating employer - Applicant aware directors ("Aitkens") of SICPWL looking to sell - SICWPL ceased trading, assets and business sold to SHL - Aitkens shareholders in SHL along with ("B") - B sole director and majority shareholder in SHL - SHL not in existence during applicant's employment - Applicant argued SHL and SICPWL one economic unit, that SICPWL controlled by SHL and carrying out business as subsidiary of SHL - Authority found no evidence of ongoing association in nature of corporate group between SICPWL and SHL - SHL not parent of SICPWL, merely purchased assets and business leaving SICPWL an inoperative shell - No evidence SHL incorporated to avoid obligation SICPWL might have to applicant - Accounts supported proposition genuine reason for sale - Joinder refused - Merits of grievance to be investigated
Result: Application dismissed ; 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
Kinley, The Registrar of Unions v M.E.U. Society Incorporated & Ors
27/10/2006, PR Stapp, WA 146/06, (3 pages)
PRACTICE AND PROCEDURE - Application for cancellation of union registration under s17 Employment Relations Act 2000 - Registrar of Unions applied for order cancelling registration of 14 unions no longer registered under Incorporated Societies Act 1908 ("ISA") - Given nature of application and outcome of attempts to serve notice of application, Authority did not direct mediation - Applicant agreed not to cancel registration of one union who replied to service - Four unions consented to removal - Five unions did not reply upon being served - Authority satisfied unions served with notice and given opportunity to reply - By not replying, Authority satisfied unions did not object to order being made - Authority attempted to serve application on remaining unions but documents returned - Without applicant being provided with alternative arrangements for address for service, Authority satisfied unions no longer incorporated - No knowledge of objection from them - Satisfied unions did not meet requirements of s14(1)(b) ISA - Cancellation of 13 unions ordered
Result: Application granted ; Orders accordingly ; No order for costs
Manning & 29 Ors v Hewlett Packard NZ Ltd
13 Jun 2007, R Arthur, AA 175/07, (6 pages)
PRACTICE AND PROCEDURE – Application for removal to Employment Court – Respondent opposed application - Matter concerned dispute and personal grievance applications - Whether respondent could stop paying superannuation contributions and withdraw Retirement Plan (“Plan”) without compensating applicant employees for loss of contributions – At issue was whether parties arrangements regarding Plan and contributions amounted to condition of employment and, if so, extent of obligation created where such condition not express contractual term – Also at issue was what phrase “change and modify”, used in documentation about Plan, allowed respondent to do – Both questions not simply of fact but law, and did not need to be novel or complex – Rather, statutory test of importance required answers to questions to be decisive or strongly influential of matter, as they plainly were in present case - Authority satisfied questions of law more than incidental to case – Questions really what case all about – Answers important not only on outcome for parties, but also for employment law generally – Also, issue of making changes to employer-provided superannuation schemes had heightened interest beyond immediate parties – Introduction of KiwiSaver scheme likely to result in many workers and employers looking at changes, modification or closure of existing arrangements – With so much at stake would inevitably be disputes – Whatever guidance Court could give on how to approach provisions for change or modification would be of keen interest – No good and sufficient reasons to exercise discretion not to order removal – Removal ordered
Result: Application granted ; Removal ordered ; No order for costs
The New Zealand Airline Pilots Association Industrial Union of Workers Incorporated v Air New Zealand Ltd
7 Mar 2007, Elias CJ, Blanchard JJ, Tipping JJ, SC 91/2006, (1 pages)
SUPREME COURT – Practice and procedure – Application for leave to appeal Court of Appeal decision (see: (2007) 8 NZELC 98,568) – Court of Appeal held that public holiday entitlement could be observed on another day by agreement (“exchange day”), exchange day must be specific day capable of identification and collective employment agreement had not validly transferred entitlements – HELD – Approved grounds of appeal were: (i) whether an employee’s entitlements to a public holiday could be transferred by agreement to exchange day; (ii) whether exchange day had to be identified or capable of identification with certainty in employment agreement; and (iii) whether collective employment agreement validly transferred entitlements – Application granted
Result: Application granted (leave to appeal) ; No award for costs
New Zealand Professional Firefighters Union v New Zealand Fire Service Commission
17 Apr 2007, Blanchard, Tipping and McGrath JJ, SC 13/2007, (1 pages)
SUPREME COURT – Practice and procedure – Application for leave to appeal Court of Appeal decision (see: [2007] 2 NZLR 356) – Firefighters worked on 160-day roster – 16 days leave, comprised of annual leave and public holidays in lieu (“alternative holidays”), provided at end of each roster period – Court of Appeal held that alternative holidays would have otherwise been working days and that it was unnecessary for alternative holiday to be specifically identified – HELD – Approved grounds of appeal were (a) whether Court of Appeal correctly construed the phrase “a day that would otherwise be a working day for the employee” in s57(1)(b) Holidays Act 2003; and (b) whether Court of Appeal was right to conclude that s57(1)(a) Holidays Act 2003 does not require specific agreement between the employer and employee as to a specific day for the taking of an alternative holiday – Application granted – Firefighters
Result: Application granted (leave to appeal) ; No order for costs
Nola & Anor v Harvey
7 Mar 2007, Shaw J, WC 10/07, (2 pages)
PRACTICE AND PROCEDURE – Application for leave to challenge Authority determination out of time – Statement of claim filed one day late without copy of Authority determination attached – Determination sent promptly when requested by Registrar – Respondent opposed leave on grounds that applicants were fully aware of filing requirements, documents filed were incomplete (completed documents approx one week out of time) and applicants had not acted in good faith during Authority process by not attending investigation meeting – HELD – Filing of form 1 statement of claim had effect of commencing proceedings – Even though determination was not attached accompanying letter referred to determination – Substance of challenge was before the Court – In accordance with Rule 5 of High Court Rules, Court treated failure to attach determination as an irregularity which was cured – Application was therefore one day out of time – Applicants posted challenge three days prior to due date and appeared to have good reason to believe would be received on time – One day delay minimal – Apart from costs of defending application, no prejudice to respondent – Number of live issues which could only be determined if both sides heard – Important factor against granting leave was failure of applicants to attend investigation meeting – Applicants unfamiliar with employment institutions processes – Unjust not to allow application – Application granted conditional on applicants paying costs order – COSTS – Although opposition to application was unsuccessful it was not without merit – Respondent awarded $1,500 contribution to approximate reasonable costs of $2,000 – Driver
Result: Application granted (leave to file challenge out of time) ; Orders accordingly ; Costs in favour of respondent ($1,500)
Royal v Petri & Anor
14 Dec 2006, P Stapp, WA 175/06, (1 pages)
PRACTICE AND PROCEDURE – No appearance by either party – Applicant required to give evidence to support her claim – Without attendance matter could not progress – No good cause for failure to attend – Applicant’s representative had not received further instructions – Application dismissed – Investigation closed
Result: Application dismissed ; Orders accordingly ; No order for costs
Smith v Nga Kairauhii Trust
9 Mar 2007, Colgan CJ, WC 11/07, (2 pages)
PRACTICE AND PROCEDURE – Application for leave to challenge out of time – 40 days late – Applicant submitted delay due to difficulties contacting lawyer – Respondent submitted delay not minimal – Challenge not meritorious – Respondent’s beneficiaries might suffer prejudice and hardship if money reallocated to defend challenge – Applicant had submitted personal grievance 442 days after date she was allegedly unjustifiably dismissed – Employment agreement had not explained process for resolution of employment relationship problems as required by s65(2)(vi) Employment Relations Act 2000 – Authority had determined subject matter of challenge (90 day issue) on the papers – Authority found failure to explain process for resolution of employment relationship problems was an exceptional circumstance, but not causative of failure to raise grievance – Authority found applicant must have been aware of 90 day limit – HELD – Authority’s conclusions were speculative and contrary to applicant’s evidence – Authority failed to comply with principles of natural justice by making credibility findings in person’s absence and on assumptions rather than evidence – Challenge had merit – Against interests of justice that employer should breach s65(2)(vi) obligation and then oppose present application on grounds that relied on that breach – 40 day delay explained – Length of delay more gross than minor but reasonably explicable – Respondent would have suffered same prejudice and hardship if challenge had been brought within time – Injustice to applicant of not having challenge considered outweighed effects on respondent – Application granted
Result: Application granted (leave to file challenge out of time) ; Orders accordingly ; Costs reserved
Southern Local Government Officers Union Inc v Christchurch City Council
16 Jul 2007, H Doyle, CA 80/07, (8 pages)
PRACTICE AND PROCEDURE - Application by respondent for removal to Employment Court – Applicant opposed application – Employment relationship problem involved partial lockout by respondent of applicant union’s members – Applicant sought orders lockout unlawful under s86 Employment Relations Act 2000 ("ERA"), wages and compensation - Respondent counterclaimed members unlawfully on strike, and were no health and safety concerns sufficient to justify strike on health and safety grounds - Definition of “lockout” in s62 Employment Contracts Act 1991 included an act of an employer “wholly or partially” discontinuing employment of employees - No case law to date about effect of removing words “wholly or partially” from s82 ERA definition of lockout - Authority found important question of law arose about lawfulness of a lockout under ERA, where partial reduction in work and pay occurred – Not appropriate for Authority to determine matter, then refer question of law to Court - Although matter not of extreme urgency, in public interest question be removed – No reasons not to exercise discretion to order removal – Entire matter removed to Court
Result: Application granted ; Orders accordingly ; Costs reserved
W v Auckland District Health Board
21 Mar 2007, William Young P, Glazebrook, O'Regan JJ, CA 102/07, (1 pages)
COURT OF APPEAL – Practice and procedure – Application for interim name suppression – Reasons for decision of 21 March 2007 – Appellant had applied for leave to appeal Employment Court decision (see: (2007) 8 NZELC 98,749) – Proposed appeal, among other matters, related to Employment Court’s refusal to grant appellant permanent name suppression – Respondent submitted proposed appeal without merit and in public interest that name suppression not continue – HELD – Appellant had received interim name suppression since May 2005 – Extra time of little significance – Undesirable for merits of application for leave to be argued in present application – Appeal would be rendered nugatory if name suppression refused – Application granted
Result: Application granted (interim name suppression) ; Orders accordingly ; No order for costs
Weatherly v Pulp and Paper Industry Council of the Manufacturing and Workers Union & Anor
18 Dec 2006, V Campbell, Aa 379A/06, (1 pages)
PRACTICE AND PROCEDURE - Authority issued earlier determination without dealing with costs – Authority directed costs reserved
Result: Orders accordingly ; No order for costs
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