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Bradshaw v James Pascoe Ltd
3 Aug 2007, V Campbell, AA 226/07, (4 pages)
DISPUTE – Applicant claimed entitled to receive proportion of manager’s bonus at end of employment for period of financial year she work – Applicant had previously received proportion of bonus when took temporary assignment and provided evidence from another employee who received pro rata bonus when left employment – Respondent denied applicant entitled to bonus and submitted payment of bonuses discretionary – Employment agreement silent on payment of bonuses – Respondent had previously issued policy stating bonus discretionary, which applicant had not challenged – Bonus payment discretionary policy, not contractual obligation – Respondent entitled to exercise discretion not to pay applicant bonus - Manager
Result: Question answered in favour of respondent ; Costs reserved
Lee v Air New Zealand Ltd
5 Nov 2007, A Dumbleton, AA 347/07, (13 pages)
DISPUTE – Restraint of trade – Applicant sought declaration regarding interpretation, application, and operation of employment agreement – Applicant senior marketing manager at respondent – Non-competition clause stated could not be employed or involved in any business in competition with respondent for three months in NZ or Australia following termination of employment – Applicant accepted general manager marketing position based in Australia with airline – Employment to commence before expiry of purported non-competition period - Agreement also contained confidentiality clause – Applicant claimed restraint unnecessary given bound by ongoing confidentiality provisions, and new employer's assertions would observe restrictions in giving applicant work, and would not require her to breach confidentiality obligations to respondent – Applicant clearly had access to, and regularly received highly confidential information – Involved in respondent’s strategic planning to defend its business against new airlines in domestic market – New employer identified by respondent as highly likely to compete for airline business – Respondent had “trade secrets” in form of highly sensitive confidential information - Secrets known to applicant in course of her work – Respondent demonstrated reasonableness of clause at time agreement entered into - Applicant believed position would be available at end of non-competition period, and her skills and experience made applicant highly employable even outside aviation industry - Difficult for Authority and respondent to police “ring fencing” arrangements and undertakings, and not practicable in circumstances – Notwithstanding confidentiality provisions and undertakings to comply with them, was reasonable non-competition clause applied – Applicant prevented from becoming employed or involved in any capacity with any business competing with respondent until end of non-competition period
Result: Question answered in favour of respondent ; Costs reserved
Service and Food Workers Union Nga Ringa Tota Inc v McCain Foods (NZ) Ltd
11 Dec 2007, D Asher, WA 164/07, (10 pages)
DISPUTE - Applicant union sought access to respondent’s workplace to recruit members – Respondent not opposed to union access, however, strongly objected to access by member organisers who were employees of main competitor – Refused access on grounds member organisers, who were not employees of union, not “representatives of a union” under ss20 and 21 Employment Relations Act 2000 ("ERA") – Also claimed justified in denying access on grounds of potential damage to business by way of loss of valuable commercial information, and access sought not reasonable and did not comply with existing reasonable security procedures – ERA not to be read down so as to deny access to union representatives who were paid employees of competitor – ERA did not expressly exclude such members from acting as union representatives – Supported by plain meaning of “representative” – Reasonable for member organisers to exercise entitlement to access because respondent enjoyed safeguards in ERA and obligations on member organisers to act in good faith – No reason to believe member organisers would not be responsible when exercising right to enter respondent’s workplace or would not comply with safety and security procedures – Respondent directed to allow reasonable access by union member organisers - Non-publication order in respect of specified documents to be continued - Penalty not appropriate as dispute was test case
Result: Question answered in favour of applicant ; Orders accordingly ; Costs reserved
Stubbings v Ministry of Social Development
28 Aug 2007, M Urlich, AA 264/07, (4 pages)
DISPUTE - Applicant applied for early retirement on medical grounds - Initially told entitled to medical retiring leave and retiring leave - Later told entitled to medical retiring leave only - Applicant sought payment of retiring leave - Respondent submitted applicant received all payments entitled to - Claimed mistaken advice given in good faith and corrected it when discovered error - Plain words of employment agreement provided for retirement leave on either medical or age related grounds - Applicant retired on medical grounds only - Not entitled to additional payment - RAISING PERSONAL GRIEVANCE - At investigation meeting issue of whether personal grievance had been raised in relation to mistaken advice discussed - Applicant's letter concerning entitlement did not make it readily apparent to respondent he wished to raise disadvantage grievance
Result: Question answered in favour of respondent ; Orders accordingly ; Costs reserved
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