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Havenleigh Global Services Ltd v Toeikrathok and Ors
23 Jan 2008, J Crichton, CA 7/08, (10 pages)
JURISDICTION - Respondents Thai nationals employed by applicant to work in New Zealand vineyards - Applicant sought declaration various allegations made by respondents had no legal basis, and direction wage overpayment be returned - Respondents allegedly raised personal grievance in letter - Did not supply further and better particulars when requested - Applicant sought declarations as not able to obtain clarification of respondents’ claims and wanted matter resolved - Respondents said unjustifiably dismissed, unjustifiably disadvantaged and subject to unlawful duress - Also sought reimbursement of lost wages and denied overpayment - In terms of s158 Employment Relations Act 2000 ("ERA"), only matter before Authority was statement of problem filed by applicant - No initiating application by Thai workers - Applicant’s statement of problem had to be genesis of Authority’s consideration of matter - Despite Authority’s wide power in ERA, unable to act ultra vires governing statute - Applicant sought to conclude dispute through Authority's processes - Abuse of process to allow such an outcome - Authority lacked jurisdiction to make declaration sought by applicant - Unable to offer applicant any other order or decision which could properly address concerns - Not persuaded respondents legitimately and properly raised personal grievance with applicant - Defect in personal grievance not perfected by evidence given to Authority - Authority not able to assist parties in resolution of employment relationship problem - Authority dismayed parties difficulties have been subject of comment in news media - Authority directed copy determination be made available to Secretary of Labour in order that Immigration Division be made aware of Authority’s concerns about Thai workers paying significant sums money to agencies in home country to obtain employment in New Zealand - Vineyard workers
Result: Application dismissed ; Costs reserved
Jack v Duratcech Wholesale Ltd
9 Aug 2007, J Crichton, CA 96/07, (6 pages)
JURISDICTION – Whether person intending to work - Applicant claimed unjustifiably dismissed when respondent withdrew offer of employment after she accepted it – Respondent accepted parties discussed employment but claimed withdrew offer before applicant accepted it – Respondent arranged for applicant and another to travel to head office – Described purpose of meeting as “getting to know” potential employees – Applicant claimed told respondent her fear of flying meant she would only attend if had employment with respondent - Alleged respondent told her to book her ticket – Submitted this constituted offer and acceptance - Respondent later sent formal offer of employment – Applicant advised respondent she had made non-negotiable changes to offer based on legal advice – Respondent claimed withdrew offer as changes extensive and amounted to unacceptable counter-offer - No offer capable of acceptance before formal offer sent by respondent - Offer not accepted by applicant - Applicant not employed by respondent
Result: Application dismissed ; Costs reserved
Ka'ai v Vice Chancellor, University of Otago
19 Dec 2007, J Crichton, CA 157/07, (4 pages)
PRACTICE AND PROCEDURE - JURISDICTION - Interim determination - Applicant alleged unjustified disadvantage and unjustified dismissal - Matter set down for investigation meeting - Applicant proposed Authority hear evidence of post-termination-of-employment conduct of respondent at investigation meeting – Sought to introduce evidence that respondent acted in bad faith - Not relevant to grievance per se but to show respondent breached good faith obligations – Alleged deprived of opportunity to be heard in respect of bullying allegations made against her as consequence of actions respondent took - Alleged representative of respondent spoke disrespectfully at a meeting thus potentially damaging reputation - Employer's action must be judged at time taken, not subsequently - Not persuaded conduct relevant to complaint – Relevant or not Authority had no jurisdiction to consider such material - Damage to reputation not a matter for employment institutions – Post-termination conduct of respondent not to be considered in substantive hearing
Result: Orders accordingly ; No order for costs
Moreton v Acantech Ltd
9 Aug 2007, J Crichton, CA 98/07, (2 pages)
JURISDICTION – Whether employee or independent contractor – Applicant incurred expenditure in his own name and sought reimbursement from respondent – Respondent had no control over applicant and he could work for other parties – No arrangement to deal with PAYE – Independent contractor - No jurisdiction - Builder
Result: Application dismissed ; No order for costs
Urquhart v Aviation Security & Anor
6 Aug 2007, V Campbell, AA 234/07, (4 pages)
JURISDICTION - Matter dealt with on papers - Applicant worked for first respondent ("AS") as commercial pilot until resigned following conflict - Applicant received conditional employment offer from second respondent ("ANZ") subject to reference check - Applicant gave specific instructions to HR manager at AS that contents of his file should not be revealed to anyone - Company subsequently contacted AS and ANZ withdrew offer as result of information obtained - Applicant alleged AS breached employment agreement by breaching Privacy Act 1993 ("PA") - Authority had no jurisdiction to determine personal grievance based on alleged breach of PA - Claims against ANZ properly being dealt with by Privacy Commissioner - Claims relating to AS's other alleged breaches of employment agreement and internal policies able to be heard by Authority - Parties directed to mediation
Result: Question answered ; Orders accordingly ; Costs reserved
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