Practice & procedure - Employment Relations Act 2000
Amey v Komene & Anor
27 Nov 2008, J Crichton, CA 178/08, (5 pages)
PRACTICE AND PROCEDURE - Identity of employer - Application to reopen personal grievance - No appearance for respondent - When employment relationship ended, applicant raised personal grievance and notified employer of outstanding wages - Parties reached full and final settlement of matters between them at mediation, with applicant not pursuing personal grievance and respondent paying outstanding wages by instalments - Respondent failed to fully honour settlement agreement - Applicant alleged respondents misrepresented themselves in mediated settlement as limited liability company, Sharvai Enterprises Limited (“S”), when in fact traded as partnership - Authority found appeared was never company incorporated as S - Insofar as operators of S represented had benefits of limited liability operators in breach of Companies Act 1993 - Authority satisfied applicant employed by respondents, not S - Applicant sought to set aside mediated settlement, given breaches by respondents, and reintroduce personal grievance claim - Authority satisfied applicant prevented from doing so by s149(3) Employment Relations Act 2000 - Application dismissed - ARREARS OF WAGES - Applicant still owed outstanding wages and other monies pursuant to mediated settlement - Respondents to pay outstanding wages - PENALTY - Applicant settled rather than pursuing personal grievance claim, facilitating prompt resolution - Respondent flagrantly breached settlement agreement and applicant now prevented from reopening personal grievance - Authority satisfied appropriate case to award penalty - $4,000 penalty awarded, payable to applicant - COSTS - Costs to lie where they fall - Truck driver
Result:
Application dismissed (Reopening of personal grievance) ; Arrears of wages ($1,777.84) ; Application granted (Penalty)($4,000)(payable to applicant) ; Costs to lie where they fall
C v D Ltd
20 Nov 2008, J Crichton, CA 140A/08, (4 pages)
COSTS – Successful personal grievance – One and half day investigation meeting - Applicant sought contribution of two thirds of applicant’s actual costs – Parties accepted challenge filed by respondent not to, as matter of law, operate as stay of proceedings, but accepted appropriate for funds to be held in solicitor’s trust account pending disposition of challenge – Authority found usual principles and tariff approach appropriate - Costs of $4,500 in favour of applicant - PRACTICE AND PROCEDURE – Applicant sought to fix quantum of respondent’s contribution to wages – Previous determination directed respondent to pay contribution to applicant’s wages in an amount equivalent to the average gross amount applicant would have earned from date of termination of employment to date of investigation meeting, less any amount earned elsewhere – Authority accepted quantum of applicant’s calculation – Found statue does not preclude finding of lost wages without personal grievance finding of unjustified dismissal – In these particular unusual circumstances, wages became due and owing as direct consequence of disadvantage – Applicant lost access to income as direct result of unjustified actions of respondent - Disadvantage in this case included wage loss - Applicant undertook to hold costs, compensation and lost wages awards in solicitor’s trust account pending disposition of challenge
Result:
RESULT: Costs in favour of applicant ($4,500) ; Reimbursement of lost wages ($8,216.50) ; Costs, compensation award and lost wages to be held in trust by applicant’s solicitor
Hall v Finlay and Associateds Ltd t/a Bobby's
3 Dec 2007, L Robinson, AA 380/07, (9 pages)
PRACTICE AND PROCEDURE - Application by respondent to reopen investigation and stay original orders - Respondent failed to lodge statement in reply or attend investigation meeting for original matter - Matter determined in respondent’s absence - Respondent submitted miscarriage of justice as did not received notice of investigation meeting and denied opportunity to present case - Court tests not appropriate for application, matter decided in equity and good conscience - Respondent’s argument confused its identity with that of director - Notice of investigation received at registered address for service of respondent company - Authority not required to see director personally served - Although director had indicated to support officer intention to defend claim, time to lodge statement already expired and would have required leave to do so - No application for leave to defend - Service effective and in accord with Employment Relations Authority Regulations 2000 - Respondent’s communication failures should not have consequences for applicant - Equity and good conscience favoured applicant - No basis to reopen investigation - Application to reopen declined - No basis to stay orders - Application for stay refused
Result:
Application dismissed ; Orders accordingly ; No order for costs
Kinley (Registar of Unions) v Te Kuiti Beef Workers Union and Ors
18 Dec 2007, P R Stapp, WA 171/07, (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 four unions - Two unions restored to Incorporated Societies register and removed from list for cancellation at applicant’s request - Of remaining two unions, one consented to removal and other did not reply upon being served - Authority satisfied unions no longer incorporated and did not meet requirements of s14(1)(b) Incorporated Societies Act 1908 - Cancellation of registration of two unions ordered
Result:
Application granted ; Orders accordingly ; No order for costs
Knight Train Haulage Ltd v Dahl
29 Nov 2007, R Arthur, AA 373/07, (6 pages)
PRACTICE AND PROCEDURE - Res judicata - Applicant claimed owed wages and expenses when respondent’s employment ended - Respondent contended matter dealt with in earlier Authority determination that awarded him lost wages and compensation for grievance - Applicant argued its claim not fully before Authority and required this determination to identify amounts that could be “set off” against remedies awarded to respondent - Authority satisfied matter already dealt with - Proper to dismiss claim without further investigation - Applicant ordered to pay previously awarded remedies to respondent - COSTS - One hour investigation meeting - Respondent’s reasonable costs calculated by Authority
Result:
Orders accordingly ; Application struck out ; Costs in favour of respondent ($600)
Matthews v ANZ National Bank Ltd
3 Dec 2007, M Urlich, AA 379/07, (6 pages)
PRACTICE AND PROCEDURE - Whether accord and satisfaction - Whether issue relating to calculation of redundancy compensation resolved - Before employment ended applicant offered compromise payment in full and final settlement of claims - Manager explained consequences of signing offer - Applicant signed as wanted exit process to be over - Settlement wording clear - Although calculation dispute not specifically referred to, it was only issue between parties and well known by them - Applicant understood agreement - No basis for claim of duress or undue influence - Full and final settlement of dispute - Applicant unable to pursue proceedings - Teller
Result:
Application dismissed ; Costs reserved
National Distribution Union v Capital & Coast District Health Board
25 Nov 2008, G J Wood, WA 155/08, (2 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Respondent sought to have matter removed to Court under s178(2)(a) and (d) Employment Relations Act 2000 (“ERA”) - Important question of law said to concern interpretation and application of collective employment agreement in light of changes to Holidays Act 2003 concerning minimum annual holiday entitlement - Respondent argued Court already had similar proceedings before it and matter likely to affect large number of employers and employees - Applicant did not oppose application - Authority satisfied important question of law - Grounds for removal under s178(2)(a) and (d) ERA made out - Although Authority usually best placed to deal with matters in first instance, no particular benefit in this case as similar matter before Court already - No other factors justifying declining application - Matter removed to Court
Result:
Application granted ; Costs reserved
NZ Meatworkers Union and Related Trades Union Inc v Silver Ferns Famrs Ltd
25 Nov 2008, D Asher, WA 156/08, (2 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Parties in dispute about interpretation of clause in 2007-2009 collective employment agreement (“CEA”) concerning annual leave entitlement after period of continuous service - Respondent did not oppose application - Applicant asked matter be removed because similar proceedings involving interpretation of equivalent clause in 2004-2007 CEA set down for hearing by Court - Authority found cost savings able to be made as existing, almost identical, proceeding before Court - In interests of justice, practicality, common sense, and consistent with s 178(2)(c) and (d) Employment Relations Act 2000, for Court to determine matter - Matter removed to Court
Result:
Application granted ; Costs reserved
Scott & Anor v Skin & Steel Ltd
13 Oct 2008, R A Monaghan, AA 353/08, (8 pages)
PRACTICE AND PROCEDURE – Identity of respondent - Statement of problem cited respondent and Kustom Tattoo Limited (“KT”) as respondents – Respondent and KT had same sole shareholder and director – Authority found no evidence that applicants employed by KT - KT struck out as a respondent – JURISDICTION – First applicant (“S”) to help organise event for respondent – S to provide timesheets and invoice respondent for hours worked and expenses incurred – Respondent argued whether S to be paid was contingent on event making money – S claimed was to be paid when event sponsorship finalised, regardless of success of event – Fact that S’s activities of kind expected of assistant to principal event organiser, did not of itself mean employment relationship existed – Authority noted that friendships, looseness of business arrangements and inexperience in management caused confusion - Second applicant (“F”) engaged under same arrangement as S – F primarily assisted and accompanied S – F engaged for less than one week – Written employment agreements destroyed by respondent, so S’s recollection of contents preferred – Found nothing in contents of signed agreements in favour of finding of employment relationships – Found parties intended relationships to be more formal than simply arrangements between friends, but no mutual intention to enter employment relationships – Initial discussions not capable of being construed as offers of employment – No discussion about key terms of employment – No constraints or requirements regarding hours of work – No element of control indicative of employment relationship - No employment relationships – Personal grievances and claims for monies owed not available remedies - Event organiser
Result:
Applications dismissed ; Costs reserved
Seaso v New Zealand Post Ltd
18 Dec 2007, P R Stapp, WA 13B/07, (5 pages)
PRACTICE AND PROCEDURE - Whether personal grievance raised - Applicant submitted raised grievance during meeting with respondent - Respondent denied this, also submitted grievance barred as matter previously dealt with by Authority as dispute and any grievance out of time - Notes of meeting expressed intention to raise grievance but no follow up action taken - Grievance not raised with enough specificity to allow respondent to address it - Understandable respondent thought earlier Authority investigation dealt with matter - No personal grievance raised - No application to grant leave to raise grievance out of time
Result:
Orders accordingly ; Costs reserved
Stewart v Vice Chancellor of Lincoln University
21 Dec 2007, P Montgomery, CA 160/07, (4 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Opposed by respondent - As result of evidence lodged by respondent’s witnesses, applicant added five causes of action to original claim - Submitted additional claims gave rise to important questions of law other than incidentally - Sought removal to Employment Court - Issue regarding standard of proof when serious allegations made against employee could give rise to issue of law with substantial bearing on matter - Both parties had high profile and high public interest in matter - Longer hearing than one presently set down required due to additional claims - Removal appropriate in circumstances - Matter removed to Court
Result:
Application granted ; Matter removed to Court ; Costs reserved
Thomas v Walkinshaw & Anor
15 Oct 2008, R Arthur, AA 310A/08, (9 pages)
PRACTICE AND PROCEDURE – Identity of employer – First respondent sole shareholder and director of second respondent – First respondent argued employment relationship was between applicant and second respondent – No written employment agreement – Business invoices referred to “Bike 360,” not second respondent – Applicant did not receive payslips or pay cheques while employed so not aware second respondent identified on those – First respondent’s email address referred to second respondent, but did not state it was limited liability company – Applicant not aware “Bike 360” was trading name of second respondent – Found first respondent’s intention that second respondent was employer, and identity of second respondent, not communicated to applicant – Second respondent was undisclosed principal at time first respondent employed applicant – First respondent did not discharge onus to identify principal to applicant, so applicant entitled to pursue first respondent personally - UNJUSTIFIED DISMISSAL - Tension in employment relationship due to incidents relating to applicant’s absence from work and applicant not been paid – After heated discussion, first respondent told applicant to “finish up” as was no longer needed – Authority found communication broke down, but issues did not justify summary dismissal – First respondent argued agreed before employment began that if employment unsuccessful, parties would just shake hands and move on – Authority found arrangement could not preclude basic employment right to have problems addressed in good faith before either party took unilateral steps to terminate employment – Dismissal unjustified – Remedies – Shop closed four weeks after dismissal, so only four weeks lost wages appropriate – Compensation for humiliation and injury to feelings appropriate as applicant devastated by sudden dismissal and embarrassed when knowledge of dismissal from bike shop emerged in cycling circles – Ten percent contributory conduct appropriate due to applicant’s inadequate communication and provocative comments to other staff about pay – ARREARS OF WAGES – After mediation, applicant paid for 84 hours work – Applicant claimed owed 12 more hours wages – In absence of time and wage records, Authority accepted applicant entitled to further wages and holiday pay – Interest at nine percent from date of dismissal – COSTS – Applicant not entitled to costs for legal advice relating to preparation for and attendance at mediation – Applicant entitled to lodgement fee – Other costs reserved – Bike shop sales assistant
Result:
Application granted (dismissal) ; Reimbursement of lost wages ($2,754) ; Compensation for humiliation etc ($2,250) ; Arrears of wages and holiday pay ($220.32) ; Interest on arrears ($28.41) ; Disbursements in favour of applicant ($70)(filing fee) ; Costs reserved
