| |
Previous Section | Table of Contents | Next Section
Andrews and Ors v Toll New Zealand Consolidated Ltd
4 Dec 2008, R Arthur, AA 412/08, (13 pages)
BREACH OF CONTRACT - Applicants recruited in South Africa - Applicants claimed representations made about pay and conditions would receive in New Zealand - Terms and conditions were contractual entitlements of wages and service recognition, relocation expenses, residency costs, healthcare and education - Authority found more likely than not that specific representations about nature of terms and conditions were not made or did not have meaning that applicants alleged - Found no contemporaneous documentary evidence supporting allegations as to what respondent's representatives told applicants - Found applicants acknowledged that real concern and primary motivator for emigration to New Zealand was safety and security of families, not close attention to details of terms and conditions of employment - Found applicants only raised concerns about difference between alleged representations and actual terms and conditions provided by respondent some months after arriving in New Zealand - Authority found if wrong as to whether representations made as alleged, case would fail anyway due to enforceability - Where recruitment interviews about conditions ambiguous, letters of offer clear - BREACH OF CONTRACTUAL REMEDIES ACT 1979 - BREACH OF FAIR TRADING ACT 1986 - Applicants sought damages under CRA to cover costs some incurred for healthcare, education and residency applications, and damages under FTA including damages for distress for alleged misleading statements about employment offered - Due to above findings, no need to consider applicants' submissions regarding FTA and CRA - Authority dismissed claims - PENALTY - Applicants sought penalties for not providing reasonable opportunity to seek advice on terms of employment - Authority found applicants did not inform respondent of difficulty getting advice - No requirement for respondent to arrange access to New Zealand legal advisors in South Africa without applicants requests - Applicants did not contact relevant union - Applicants had reasonable opportunity to seek advice - Authority declined to impose penalty - GOOD FAITH - Applicants sought declaration that respondent did not act in good faith in dealing with concerns - Authority found respondent investigated applicants' concerns through meetings, correspondence and mediation - However respondent breached duty of good faith where representative made comment discouraging applicant from discussing whether terms in offer letter being honoured with union representative - Comments breached duty of good faith in employment relationships towards applicants as union members and also relevant union - Breach intended to undermine employment relationship by discouraging applicant from exercising right to seek union assistance - If sought, Authority would have imposed penalty under s4A(b) ERA - Train drivers
Result: Applications dismissed (breach of contract)(penalty) ; Application granted (breach of good faith) ; Costs reserved
It Maniacs Ltd v Ford
12 Nov 2007, R A Monaghan, AA 351/07, (45 pages)
BREACH OF CONTRACT - Applicant claimed breach of contract and sought damages - Applicant claimed respondent attempted to set up competing business, enticed applicant's employee to work for him and breached confidential information and IT policies - Applicant also invited Authority to conclude respondent in contempt of Authority by failing to produce evidence - Respondent intended to set up business to sell specialist computer software - Applicant advised that plan acceptable if did not promote business to applicant's clients or work on business during applicant's time - Applicant offered respondent franchise opportunity which respondent rejected - Proposal included applicant's financial information and business plan - Information provided on confidential basis - Forensic examination revealed respondent copied several of applicant's client's CVs to laptop - Applicant claimed was evidence respondent using CVs for own business - Respondent argued CVs necessary to test software - Applicant's primary concern respondent setting up business in competition with applicant and breached obligations as employee - Authority identified supplementary breaches prior to hearing primary breach - Claimed breached Employment Agreement ("EA") by purchasing domain name, preparation of stationary, transferring large quantity of applicant's information to home server, registering recruitment website, testing applicant's software, and registration of new business - Authority found duty of fidelity did not prevent employees preparing for own business provided done without breaching duty of trust and confidence to current employer - Authority found no evidence respondent offered employment to co-worker - Authority not persuaded respondent diverted applicant's candidates to own business - Found allegations regarding misuse of confidential information and intellectual property was conduct capable of undermining trust and confidence, however, in these circumstances breaches not sufficient in themselves to amount to undermining conduct - Authority found respondent's credibility dented by deleting material from personal laptop which prevented applicant and Authority from identifying extent of activities - Authority considered applicant's evidence not as compelling as applicant believed - However, respondent's subsequent conduct seriously suggested guilty conscience - Authority concluded respondent's failure to inform applicant that working on new business after declining franchise offer favours finding respondent preparing to establish business in breach of duty of fidelity - Damages - Authority satisfied not enough evidence to warrant order that respondent repay salary - Found no loss suffered by applicant as result of breach of EA by respondent - Respondent ordered to reimburse applicant for costs incurred in forensic examinations ($14166) - Found respondent aggravated matters by deleting material after became aware of applicant's concerns - Authority found not enough evidence to support other damages claims - COUNTERCLAIM - UNJUSTIFIED DISADVANTAGE - Respondent claimed decision to suspend unfair as not given opportunity to be heard before suspension - Found no disadvantage as applicant's interests in protecting its proprietary information justified suspension without respondent being heard - UNJUSTIFIED DISMISSAL - Applicant argued decision to dismiss based on evidence in forensics report - Authority did not accept applicant's reasons for failing to reconvene disciplinary meeting - Respondent's breach of fidelity reflected extent to which could commence a competing business, however, when made decision to dismiss applicant read more into material available and therefore resulting conclusions flawed - Authority found use of respondent's "VPN connection" from home server a breached applicant's IT policy but risk to security not expressly relied on as reason for dismissal - Authority concluded reasons for dismissal not properly put to respondent - Dismissal unjustified - Remedies - Authority concluded respondent's efforts in response to applicant's investigation made respondent author of own misfortunes - No remedies awarded - ARREARS OF WAGES - Authority did not accept wages could be withheld on account of damages when neither quantum or liability established - Authority ordered applicant to pay $9328 being final pay and holiday pay unlawfully withheld from respondent - PENALTY - Authority found respondent's approach to applicant's information irresponsible but not breach of good faith - Authority concluded view of respondent's conduct reflected in remedy being declined for personal grievance - Penalty declined - National sales manager/senior recruitment consultant
Result: Application granted (Breach of contract) ; Application dismissed (Penalty) ; Damages ($14,166.54) ; Counterclaim granted (Dismissal) ; Counterclaim dismissed (Disadvantage) ; Counterclaim granted (Arrears of wages and holiday pay) ($9,382.57) ; Costs reserved
Previous Section | Table of Contents | Next Section
|
 |
