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Association of University Staff Inc v Vice-Chancellor of the University of Auckland
3 Oct 2006, D King, AA 308/06, (5 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Applicant alleged respondent repeated conduct previously held to be illegal by Court - Also alleged breach of good faith and breach of agreement between parties - Submitted all three causes of action relied in part on earlier Court decision - Proceedings related to communications to non-union members and good faith obligations - Respondent claimed issues already determined and sought to strike out first cause of action and certain allegations on basis of res judicata and estoppel arguments - Authority did not think novel or new questions of law - Issues related to particular circumstances of case and Authority ideal forum for determination - Important question of law not likely to arise other than incidentally - Section s178(2)(b) Employment Relations Act 2000 required case be "of such nature and urgency" it should be removed in public interest - No claim by applicant case urgent - No current proceedings before Court to justify removal - Type and number of respondent's claims did not in itself constitute circumstances in which removal should be ordered - Authority often dealt with interlocutory proceedings - Authority about to issue determination when Employment Court released Axiom Rolle PRP Valuations Services Ltd v Kapadia (cited below) - Parties given opportunity to make further submissions - Authority accepted retained jurisdiction to make some permanent injunctions - Grounds for removal not satisfied
Result: Application dismissed ; Costs reserved
C v The Commissioner of Police
23 May 2007, GJ Wood, WA 81/07, (3 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Applicant claimed problem of such nature and urgency that in public interest it be removed, and in all circumstances Court should determine matter - Applicant alleged harassment (principally, but not solely, sexual harassment) and constructive dismissal - Applicant made linkages with Bazley inquiry into police conduct and high profile trials of police officers - Also relied on need for urgent closure to matter - Respondent denied relevant to Bazley inquiry and believed matter could be dealt with by Authority - Saw no particular need for urgency as events occurred over 10 months ago - Nature of case not one of itself that would create situation where in public interest to remove matter immediately to Court - Authority did not accept public interest in case created simply because Government report into police culture found parts of it wanting - Problem did not involve same serious criminal allegations as made against other Police officers referred to - Public interest in officers and police conduct did not in itself mean any case involving police should be removed to Court in public interest - No reason Authority could not deal with matter as promptly as Court - Authority's investigative processes quite likely to be less stressful for applicant than adversarial approach of Court and vast majority of Authority determinations not challenged - Interests of justice would not be better served by removing employment relationship problem to Court - Application declined - Interim order prohibited publication of applicant's name and identifying information
Result: Application dismissed ; Costs reserved
Maritime Union of New Zealand Inc & Ors v TLNZ Ltd
19 Jun 2007, RA Monaghan, AA 181/07, (4 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Both parties consented to removal - Applicant claimed respondent's new policy to test for presence of drugs and alcohol in employees and potential employees unlawful - Policy provided for pre-employment, post accident, post incident and reasonable cause testing - Applicant claimed respondent sought to impose oppressive policy on stevedores not working in "safety sensitive" areas - Also claimed urine testing unnecessarily intrusive and less intrusive avenues open - Respondent contended all work sites "safety sensitive" - Authority accepted Court would need to determine whether NZ Amalgamated Engineering etc Union Inc v Air New Zealand (cited below) applicable where safety issues rather than public safety issues arose - Key issue whether in light of recent technological developments, urine testing no longer appropriate and could now be considered unreasonably intrusive - Needed to address relationship between drug and alcohol testing and workplace safety in waterfront industry specifically, but also in terms that extended to wider public interest - Matters of such significance that should be removed to Employment Court, particularly given effluxion of time and nature of technological developments since Air New Zealand - Removal ordered
Result: Application granted ; Matter removed to Court ; No order for costs
McGillivray v Godfreys Bakery
14 May 2007, J Crichton, CA 52/07, (3 pages)
PRACTICE AND PROCEDURE - Interim determination - Respondent alleged paragraphs in statement of problem breached s148(1) Employment Relations Act 2000 by referring to matters generated for purposes of mediation - Employment relationship deteriorated after business sold to respondent - Applicant raised unjustified disadvantage grievance and at his request parties attended mediation - During mediation respondent prepared "list of expectations" required of applicant - Applicant believed in worse position after mediation and resigned - Applicant regarded list as evidence respondent wanted him to leave - Applicant unreasonably expected mediation would only deal with his issues, not respondent's - Fact one party initiated mediation did not provide right to "drive" mediation process - Authority satisfied respondent participated in mediation for purposes of making genuine contribution to continuing employment relationship - List came about in that context - By referring to list paragraphs traversed matters confidential by reason of s148 - Not entitled to plead paragraphs - Parties to proceed exclusively on unjustified disadvantage claim unless constructive dismissal claim could be reformatted without recourse to paragraphs - If claim reformatted, applicant's counsel to contact Authority
Result: Question answered in favour of respondent ; No order for costs
Mullay v Southern Institute of Technology
31 Jan 2006, H Doyle, CA 15/06, (1 pages)
COURT OF APPEAL - Application for leave to appeal Employment Court decision - Meat processor decided to dispense with separate facilities for meat inspectors at certain plant - Whether respondent required to ensure meat inspectors had access to separate facilities - Employment Court held no such entitlement (see: [2005] 1 ERNZ 789) - Appellants challenged significance Employment Court had attributed to fact that separate facilities had been historically provided - Submitted Employment Court did not separately address health and safety obligations under collective agreement - Final ground of appeal addressed factual findings of Employment Court - HELD - Argument for existence of implied term of entitlement to separate facilities was hopeless and related arguments had no prospects of success - Employment Court focused primarily on provisions in Health and Safety in Employment Act 1992 ("HSEA") - Collective agreement was expressed in different language - However, factual findings regarding HSEA equally applicable to collective agreement - Suggestion that "no evidence" to support Employment Court's conclusions was untenable - None of proposed grounds disclosed genuinely arguable question of law - Leave to appeal declined
Result: Application dismissed (leave to appeal) - Cost in favour of respondent ($1,500 plus disbursements)
NZ Amalgamated Engineering Printing & Manufacturing Union Inc v Air Nelson Ltd
21 Jun 2007, H Doyle, CA 59A/07, (2 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Interpretation and application of s97 Employment Relations Authority - Important question of law likely to arise and no good reason not to remove matter - Applicant attached minute from Chief Judge indicating that if substantive claim came before Employment Court he would consider establishing Full Court to hear case - Matter removed to Court
Result: Application granted ; Costs reserved
Snorkel Elevating Work Platforms Ltd v Thompson
3 Nov 2006, PR Stapp, WA 73A/06, (4 pages)
PRACTICE AND PROCEDURE - Issue raised regarding interest payable by respondent - Claim for interest disposed of at time of substantive determination - Matter closed - COSTS - Both parties claimed costs for respective applications that had been consolidated and heard together - Length of investigation meeting not specified - Each successful with own claim - Applicant sought contribution of $15,000 towards total costs of $35,000 for its recovery application - Submitted costs should lie where they fall for respondent's personal grievance - Also sought disbursements of $22,469, including expenses relating to video conference, witnesses, and counsel's travel - Respondent's costs were $25,148 for recovery action, and $18,078 for his personal grievance - Costs ordered on both applications as Authority satisfied both genuine and not just matter of leverage against each other - Expense of video conferencing to be shared as benefited both parties - No other disbursements ordered because both parties required to prepare for investigation, inevitably involving photocopying etc - Both parties chose their counsel and travel expenses inevitable part of proceedings given applicant's obligations involved attendance in New Zealand - Respondent should not have to pay for applicant's choice - Attendance of witnesses a standard requirement - Given employer was applicant it should meet own witness costs - Respondent to pay costs of $6,000, being 40 percent of reasonable costs of $15,000 - Assessment based on preparation, representation and time involved in Authority investigation, and because of proportionality of applicant's claim - Applicant to pay $3,000 towards respondent's costs for straight forward personal grievance
Result: Orders accordingly ; Costs in favour of applicant ($6,000) ; Disbursements in favour of applicant ($657.13)(Video conferencing) ; Costs in favour of respondent ($3,000)
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