|
Previous Section | Table of Contents | Next Section
Causer v Gleeson & Cox Transport Ltd
4 Nov 2008, M Urlich, AA 325A/08, (2 pages)
COSTS - Unsuccessful personal grievance - Half day investigation meeting - Respondent sought full costs of $3,308 including disbursements - Argued was wholly successful party, claim was unrealistic and unsubstantiated and offer made by respondent rejected - Applicant argued unfairly treated and did not feel should have to contribute to costs - Authority found no grounds for indemnity costs in case - Costs to follow event - Respondent entitled to contribution to costs
Result: Costs in favour of respondent ($1,000)
Chiu v New Deli & Cafe Ltd and Anor
18 Nov 2008, A Dumbleton, AA 394/08, (35 pages)
PRACTICE AND PROCEDURE - Respondents two separately incorporated companies with same directors - Written employment agreement stated both respondents were "The Employer" - Authority found applicant employed by both respondents at same time - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Applicant advised respondent that pregnant - Applicant raised disadvantage grievance with respondents, stating disadvantaged and discriminated against by reason of pregnancy - Applicant dismissed two days later - Alleged ground for dismissal was failure to provide proof of eligibility to legally work in New Zealand - Respondent offered job back on condition applicant provided proof of immigration status - Applicant claimed dismissal unjustified due to discrimination by reason of pregnancy - Respondent denied claims, and argued applicant employed 3 weeks, not six months - Conflict in evidence as to term of employment - Parties called evidence from customers of café, past and present employees, telephone records, forensic examination of handwriting, bus tickets and bank deposit receipts - Authority found more than likely that applicant employed for over six months, and that respondents called false evidence - Authority rejected respondent's alleged justification for dismissal - Accepted applicant's evidence that already provided satisfactory proof of eligibility to work so did not provide it again when requested - Found respondent's real concern likely impending disclosure to IRD of respondent's failure to pay PAYE on wages when applicant applied for paid maternity leave - Applicant's immigration status pretext for dismissal - Real reason applicant's pregnancy or impending parental status and its further consequences - No justification for dismissing applicant on grounds of pregnancy - Dismissal unjustified - Due to close proximity in time and event, Authority found dismissal grievance subsumed disadvantage and discrimination grievances - Found in any case, no actual disadvantage or discrimination occurred prior to dismissal - Remedies - No contributory conduct - Authority considered when applicant would have stopped work due to pregnancy - Requirement to mitigate loss considered against respondent's failure to attend mediation in timely manner - Thirteen weeks lost wages awarded - Applicant suffered substantial emotional harm through dismissal and loss of chance to secure maternity leave - Harm aggravated by respondent's conduct in persisting with false evidence and insulting insinuations about applicant - $8,000 compensation appropriate - PARENTAL LEAVE - Authority found unjustified dismissal prevented applicant from applying for maternity leave - No reason why application would not have been accepted - Entitled to compensation for loss of opportunity - Authority considered compensation for loss of expected statutory benefit could be awarded under s123(1)(c) ERA - Civil remedy of compensatory damages for breach of contract also available under s162 ERA - Loss quantifiable as would have received 14 weeks pay - Loss directly and foreseeably arose from respondent's unlawful act of unjustified dismissal, and not remote consequence - Authority awarded sum to restore applicant to position if opportunity to apply for paid maternity leave not unlawfully taken away - ARREARS OF WAGES - Authority found applicant received holiday pay for three weeks rather than six months - Authority accepted applicant's calculations - Holiday pay owing - Two days pay also owing - COSTS - Applicant represented self - No costs or disbursements awarded - Waitress
Result: Application granted (unjustified dismissal) ; Arrears of wages ($239.20) ; Arrears of holiday pay ($1,384.27)(Interest 6%) ; Reimbursement of lost wages ($8,023,60)(Interest 6%) ; Compensation for humiliation etc ($8,000) ; Compensation for loss of benefit of paid parental leave ($4,619.47) ; Application dismissed (unjustified disadvantage) ; No order for costs
Doherty v PRP Auckland Ltd (now Orakei Group (2007) Ltd)
21 Dec 2007, P R Stapp, WA 177/07, (8 pages)
RECOVERY OF MONIES - Applicant sought to be paid outstanding monies by respondent , which he claimed jointly employed him with third party - Third party had accepted liability to pay outstanding amount in earlier Authority determination - However, went into liquidation before applicant paid - Authority had reserved leave for investigation meeting to be resumed in respect of respondent's liability - Identity of respondent complicated by involvement of large number of related companies and name changes - Company currently trading as respondent not applicant's employer - However, evidence to show that company that formally used same name was employer - Liable for outstanding monies - However, appeared to be shell company and no longer trading - COSTS - One hour investigation meeting - $2,000 costs to applicant
Result: Application granted ; Orders accordingly ; Costs in favour of applicant ($2,000)
Fenton v Centre Island Seafoods Ltd
17 Dec 2007, P R Stapp, AA 398/07, (10 pages)
UNJUSTIFIED DISMISSAL - Applicant alleged unjustifiably dismissed when not re-employed by respondent - Respondent submitted applicant engaged on seasonal arrangement and left, which led it to conclude he no longer wanted to work for it - Applicant initially engaged without agreement on permanent basis - Signed seasonal agreement superseded earlier arrangement - Seasonal employee from that time - Lawful fixed term agreement - Towards end of season, applicant advised no work available during off season - Applicant left and did not return - Respondent claimed attempted to contact applicant without success - Open to respondent to conclude applicant had left for other work - No dismissal - No formal arrangement that receptionist would contact workers to re-engage them for new season - Therefore applicant had no claim respondent failed to re-employ him - Respondent did not rely on abandonment clause so no obligation to contact applicant - No sufficient contractual terms to require the employer to re-employ applicant and to contact him for that purpose - COSTS - Length of investigation meeting not specified - Reasonable contribution to costs awarded to respondent
Result: Application dismissed ; Costs in favour of respondent ($1,500)
Kidd v The Prenzel Distilling Company Ltd
27 Nov 2008, P Cheyne, CA 179/08, (2 pages)
COSTS - Withdrawn personal grievance - No investigation meeting - Respondent sought costs - Applicant argued costs to lie where they fall - Applicant notified Authority month prior to investigation meeting, via email that application withdrawn and would send confirmation letter - Authority did not receive letter - Respondent learnt of applicant's intention to withdraw when contacted Authority about not receiving witness statements from applicant - Respondent sought contribution to legal costs of $2,500 - No evidence of legal fees incurred provided by respondent - Authority not satisfied any legal fees were incurred relating to proceedings prior to withdrawal of application - Not appropriate to award costs in favour of respondent
Result: No order for costs
Macdonald v Gifkins & Anor
28 Oct 2008, R Arthur, AA 59B/08, (2 pages)
COSTS - Successful personal grievance - Half day investigation meeting - Applicant sought $3000 costs from total costs of $7114 plus disbursements, however costs increased after respondent filed reopening application - Applicant granted legal aid for reopening application - Respondent did not lodge reply memorandum regarding costs - Authority found applicant entitled to contribution to costs of $3,000 plus lodgement fee - Additional award of $1000 for additional costs incurred by reopening application filed by respondent
Result: Costs in favour of applicant ($4,000); (Filing Fee) ($70)
Maguire v Drake NZ Ltd
11 Nov 2008, D Asher, WA 66A/08, (3 pages)
COSTS - Successful personal grievance - Half day investigation meeting - Applicant sought full legal costs of $2,160 plus disbursements as had made settlement offer which was rejected by respondent therefore putting applicant to additional costs - Offer applicant made significantly less than what was awarded - Respondent agreed with Authority's indicative comments on contribution to costs and paid applicant $1,500 - Argued any further costs incurred were unnecessary as no justification to seek costs beyond Authority's normal practice - Authority satisfied applicant already received appropriate contribution to fair and reasonable costs and no reason to depart from indicative costs figure already provided other than filing fee
Result: No order for costs ; (Filing fee)($70)
The New Zealand Nurses' Organisation and Anor v Elmwood House Partnership
14 Nov 2008, G J Wood, WA 104I/08, (2 pages)
COSTS - Unsuccessful compliance order application - No investigation meeting - Respondent sought costs of $708 for filing statement of reply - Costs sought on indemnity basis as respondent argued unnecessarily put to cost of having to file statement of reply against allegations that should never have been made - Authority found no evidence applicant's claim was devoid of merit even though claim withdrawn upon receipt of statement in reply - Claim pursued in good faith - Inappropriate to award costs in matter
Result: No order for costs
Orakei Group (2007) Ltd (formerly PRP Auckland Ltd) v Doherty
28 Oct 2008, Shaw J, WC 12B/08, (3 pages)
COSTS - Unsuccessful point of law challenge - Money paid into Court - Plaintiff paid $6,000 into Court as security for costs which included $2,000 for costs ordered by Authority - Plaintiff placed into liquidation following substantive judgment - Liquidator advised of intention to discontinue proceedings and requested the Court to pay $6,000 to him to distribute in accordance with the Companies Act 1993 - Liquidator argued that $6,000 was a company asset - Also, that Companies Act prevented Court from making any further orders - Defendant submitted that $6,000 was no longer an asset of the plaintiff company and should be paid to him following his successful defence to the challenge - HELD - Money paid into Court not an asset of the plaintiff company - Money under control of Court until further Court order - No notice of discontinuance received - In any event, discontinuance would not affect determination of costs - Plaintiff ordered to pay $4,000 costs for Employment Court proceedings - $2,000 costs ordered by Authority remained - Registrar to release $6,000 to defendant in satisfaction of costs orders
Result: Costs in favour of defendant ($4000) ; Orders accordingly
Perkins t/a Onekawa Curtains and Blinds v Pritchard and Anor
17 Sep 2008, G J Wood, WA 119/08, (3 pages)
COSTS - No investigation meeting - Costs claim related to claim by applicants that first respondent breached employment agreement in relation to confidentiality and privacy and second respondent incited, instigated and aided or abetted breaches - Claims against first respondent settled and first respondent took no part in costs claim - Second respondent argued lack of specificity over claims meant unable to respond properly and had already raised separate employment problem with applicants - Second respondent sought costs of $1,367 relating to filing of statement in reply and mediation - Reasoned was put to cost unnecessarily as claims vexatious and malicious - Applicants submitted matters settled following mediation and second respondent should meet own costs - Authority found no costs award appropriate in circumstances - Respondent elected to make costs application, would be inappropriate to award costs to compensate for making application
Result: No order for costs
Salant v Hospitality Services Ltd
11 Nov 2008, Y S Oldfield, AA 235A/08, (2 pages)
COSTS - Successful counterclaim - Less than half day investigation meeting - Respondent sought contribution of $2,500 to total costs of $8,500 - Applicant made no application - Authority used tariff based approach in determining modest award of costs - Contribution of $1,000 to respondent's costs awarded
Result: Costs in favour of respondent ($1,000)
Thomas v Walkinshaw and Anor
26 Nov 2008, R Arthur, AA 310B/08, (2 pages)
COSTS - Successful personal grievance - Length of investigation meeting not specified - Applicant sought contribution of $775 to costs - Though applicant not represented at investigation meeting sought professional advice on personal grievance case from advocate and was charged $1,200 - Authority found $600 reasonable contribution to costs incurred
Result: Costs in favour of applicant ($600)
Thomson v Metros Publishing Group Ltd
18 Nov 2008, J Crichton, CA 145A/08, (3 pages)
COSTS - Successful personal grievance - 1½ day investigation meeting - Applicant sought significant contribution to costs of $7,415 - Respondent argued costs in Authority typically modest and principles applicable would not favour magnitude sought - Submitted should not be liable for additional costs applicant incurred due to Authority summoning witness - Also argued applicant not wholly successful in matter - Authority took all matters into account and found applicant entitled to $4,750 as contribution to costs
Result: Costs in favour of applicant ($4,750); (Filing fee) ($70)
Wells v Rescare Management Ltd
25 Nov 2008, A Dumbleton, AA 199A/08, (3 pages)
COSTS - Successful personal grievance - One day investigation meeting - Applicant sought total costs award of $9,106 - Amount included mediation related costs - Respondent submitted costs claim not supported by itemised account - Argued costs incurred prior to investigation meeting ought be set aside as not relevant to investigation meeting - Authority agreed with respondents argument - Nothing in conduct of investigation that justified higher award of costs - Respondent submitted costs should be in range of $1,000 to $2,000 in circumstances - Authority found $2,250 as reasonable contribution to actual costs
Result: Costs in favour of applicant ($2,250)
Previous Section | Table of Contents | Next Section
|
