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Devi v M Manhaas & Manhaas Industries Ltd & Anor
13 Sep 2007, PR Stapp, WA 128/07, (3 pages)
PRACTICE AND PROCEDURE - Applicant overseas and could not afford to return to New Zealand to provide evidence in person - Also difficult to meet immigration requirements before scheduled investigation meeting - Requested matter be extended to next available date - Respondent did not oppose or agree to extension - Authority satisfied date for investigation meeting should be vacated - However, in circumstances not prepared to allocate another date - Applicant's future availability uncertain - Authority not prepared to accept respondent's claim unavailable for one year period without details being provided - Investigation adjourned sine die until applicant provided certainty about availability for investigation meeting - Authority would then look more closely at respondent's availability but it was on notice needed to be prepared to proceed
Result: Orders accordingly ; No order for costs
Jeffries v Adis International Ltd
21 May 2007, William Young P, Glazebrook, Wilson JJ, CA 81/07, (1 pages)
COURT OF APPEAL – Practice and procedure – Application for leave to appeal Employment Court decision out of time – Application for adjournment – HELD – No legal issue that would warrant grant of leave to appeal – Complaints factual – Applications dismissed
Result: Application dismissed (leave to appeal out of time) ; Application dismissed (adjournment) ; Costs in favour of respondent ($400)
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
Macbeth v Cookie Time Ltd
7 Dec 2007, P Montgomery, CA 149/07, (2 pages)
PRACTICE AND PROCEDURE – Application for removal to Employment Court – Primary question whether applicant employee or independent contractor – Parties submitted factual matrix complex and orders relating to discovery, including non-party discovery, best decided by Court – Also submitted level of quantum sought meant probable unsuccessful party would challenge any determination - Neither party opposed removal on basis would be deprived of right to challenge Authority determination – Case featured on 20/20 television programme and in public domain – “In all the circumstances” appropriate matter removed to Court
Result: Application granted ; Matter removed to Court ; No order for costs
Ms X v Bay of Plenty District Health Board
29 Nov 2007, M Urlich, AA 372/07, (5 pages)
PRACTICE AND PROCEDURE – Application for adjournment – Applicant had applied for compliance orders reinstating paid sick leave until returned to work or personal grievance resolved – Parties advised sick leave reinstated until further mediation – Further mediation did not occur and respondent stopped payments – Investigation of compliance application rescheduled - Respondent sought adjournment pending outcome of criminal prosecution for alleged offences against s6 Health and Safety in Employment Act 1992 – Submitted cause of applicant’s ill health squarely before Authority to determine, and was considerable factual and legal overlap between issue and issues before District Court – Respondent claimed its right to silence overridden if Authority determined issue prior to criminal proceedings – Also claimed danger of injustice as would have to disclose defence to criminal prosecution and its “right to silence” could not be adequately compensated by damages - Applicant opposed adjournment – Authority accepted further delay in resolving employment relationship problem important factor in exercising discretion to grant adjournment - Issue of causation squarely before Authority – Respondent denied applicant’s illness due to its actions and did not concede she had arguable case – Issue of causation would have to be determined by Authority - Would be entitled to investigate issue and parties would be entitled to put forward evidence in support of positions – Authority not satisfied causation issue could be cleaved from investigation, and issue central to criminal proceedings – Adjournment granted
Result: Application granted ; Costs reserved
Olsen v Carter Holt Harvey IT Ltd
13 Dec 2007, M Urlich, AA 391/07, (3 pages)
PRACTICE AND PROCEDURE – Application for removal to Employment Court – Interpretation and application of s69OK Employment Relations Act 2000 – Applicant claimed respondent failed to accept her choice to transfer to it as successor company when her former employer was sold – Alleged unjustifiably dismissed – Question of law important to parties and concerned untested statutory provision with potential to affect large numbers of employees and employers – Matter removed to Court
Result: Application granted ; Matter removed to Court ; Costs reserved
Service and Food Workers' Union Nga Ringa Tota Inc v Air New Zealand Ltd
12 Dec 2007, A Dumbleton, AA 338A/07, (4 pages)
PRACTICE AND PROCEDURE - Respondent previously found to have breached s4(1) Employment Relations Act 2000 good faith requirements by making representations to employees with intention of inducing them not to be covered by collective employment agreement – Liable to penalty under s4A(b)(ii) and matter reserved for parties to make further submissions - However, applicant now wished to withdraw application for penalties – Considered new circumstances, arising out of successful mediation, made it unnecessary for penalties to be awarded – Parties had agreed upon form of amends to be made by respondent to meet interests of applicant and its members in making respondent accountable for breach – Application for penalties to be regarded as withdrawn – Authority commented it was of view terms of settlement squarely addressed relative seriousness of breach and remedy closely fitted breach in respect of gravity and any harm caused by it – Investigation concluded
Result: Orders accordingly ; No order for costs
Siita & Anor v Jett Jett Ltd t/a Rakino
23 Oct 2007, M Urlich, AA 333/07, (2 pages)
PRACTICE AND PROCEDURE - No appearance by applicants - When Authority contacted applicants' representative he sought adjournment as unable to attend - Claimed made other commitments as believed investigation meeting already adjourned - No reasonable basis for belief - Application for adjournment declined - Substantive application dismissed - COSTS - Respondent sought contribution to costs - Appropriate to award $200 costs, applicants to pay $100 each
Result: Orders accordingly ; Costs in favour of respondent ($200)
Soen v Cosmos Hantec Investment (NZ) Ltd
10 May 2007, M Urlich, AA 143/07, (4 pages)
PRACTICE AND PROCEDURE - Applicant raised grievance - Respondent claimed when it replied to applicant's discovery request it inadvertently disclosed privileged document - Sought order from Authority preventing applicant using or referring to document - Applicant argued document not privileged, unclear whether privilege attached to whole document, and whether copied document could attract privilege - Document recorded minutes of meeting where respondent's executives discussed how to handle applicant's employment issues in light of legal advice received - Document in entirety attracted solicitor/client privilege - Disclosure of document inadvertent - Not in interests of justice to allow applicant to use document - Authority would not be misled if document not provided - Applicant could not use or refer to document
Result: Orders accordingly ; Costs reserved
Stevens v Nelson Marlborough Institute of Technology
7 Nov 2007, P Montgomery, CA 131/07, (2 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Submitted important questions of law likely to arise other than incidentally and in all circumstances Court should determine matter - Also submitted issues relating to estoppel, Contractual Remedies Act 1979, Fair Trading Act 1986, and rectification at heart of matter - Application not opposed by respondent - Criteria in s178 Employment Relations Act 2000 met - Matter removed to Court
Result: Application granted ; Costs reserved
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