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Albon v Professional Garden Services Ltd
16 Oct 2006, D Asher, WA 139/06, (4 pages)
PRACTICE AND PROCEDURE - Quantum of remedies - Lost wages reduced by sum applicant earned during awarded period, and by 50 percent for contributory fault - Authority had reserved leave on calculation of lost wages if parties could not agree on sum - Parties unable to agree on sum and repayment regime - Respondent claimed could not afford to pay lump sum - Authority calculated applicant's lost wages, including hourly attendance bonus would have received had he not been unjustifiably dismissed - Evidence of respondent's ability to pay not disputed - Respondent ordered to pay $1,000 immediately and remainder by monthly instalments - COSTS - Reasonable applicant awarded half of legal costs taking into account contributory finding - Costs legitimately incurred - Respondent to pay applicant $970 costs
Result: Orders accordingly ; Reimbursement of lost wages ($2,241.20) ; Compensation for humiliation etc ($1,500) ; Costs in favour of applicant ($970)
Barnett v McLoud t/a European Wholsale Cars
29 Mar 2007, R Arthur, AA 96/07, (4 pages)
UNJUSTIFIED DISMISSAL - Summary dismissal - No appearance for respondent - No written employment agreement - More likely than not applicant's evidence described employment and dismissal - On two occasions not paid wages or short paid, causing bank dishonour fees - Raised issue and respondent said "would take care of it" - Applicant sworn at and told to get off property when queried cheque payment - Respondent later alleged applicant casual employee and could not have been dismissed - Applicant employed to work on full time on-going basis - Sent away in manner unequivocally a dismissal - Fair and reasonable employer would have stated concerns and asked for explanation before deciding on disciplinary action - Appeared to be no issues of poor performance or misconduct - Dismissal unjustified - Identity of employer - Authority satisfied respondent applicant's employer - Must bear personal obligation of remedies - Respondent breached obligation to provide employment agreement - COSTS - One hour investigation meeting - Appropriate to award costs of $500 plus filing fee - Length of service not specified - Car groomer
Result: Application granted ; Reimbursement of lost wages ($2,240) ; Compensation for humiliation etc ($4,000) ; Costs in favour of applicant ($500) ; Disbursements ($70)(Filing fee)
Chin v Yong t/a Yong & Co Chartered Accountants
9 November 2006, L Robinson, AA 312A/06, (3 pages)
COSTS - Successful personal grievance - One day investigation meeting - Applicant sought full costs of $2,190 plus disbursements of $115 - Not a case for indemnity costs - Respondent had challenged substantive decision and advised would not pay costs until matter decided by Court - Election to challenge did not operate as a stay of Authority's determination - Nothing that warranted departure from conventional approach to costs
Result: Costs in favour of applicant ($1,500) ; Disbursements ($115)
Crawford v M Torok Holdings Ltd
30 Apr 2007, L Robinson, AA 91A/07, (2 pages)
COSTS - Successful personal grievance - Less than one day investigation meeting - Applicant sought reasonable contribution to total costs of $3,500 - Respondent did not make submission - No reason to depart form conventional tariff - Applicant awarded contribution to costs of $1,500
Result: Costs in favour of applicant ($1,500)
Daske v Tile New Zealand Ltd
23 Apr 2007, M Urlich, AA 119/07, (2 pages)
COSTS - Unsuccessful personal grievance - Less than one day investigation meeting - Respondent sought reasonable contribution of $2,500 to actual costs of $4,824 plus disbursements - Applicant submitted costs should lie where they fall - Applicant submitted not in financial position to contribute to respondent's costs and submitted respondent's costs excessive given matter straightforward and investigation meeting less than a day - Applicant to pay reasonable contribution to costs of $750 plus expenses
Result: Costs in favour of respondent ($750) ; Disbursements ($20)
Graham v Crestline Pty Ltd
21 Nov 2006, Colgan CJ, AC 53A/06, (1 pages)
COSTS - Unsuccessful de novo challenge to determination of Employment Relations Authority (see: AC 53/06) - Challenge permanently stayed after Court decided preliminary point that parties had reached unconditional accord and satisfaction - More than one-half but less than one full day hearing - Defendant sought costs of $26,577.84 (representing 80 percent of actual costs) and disbursements of $1,435.90 - Defendant submitted legal costs reflected litigation stakes and its needs to prepare for substantive hearing on merits of plaintiff's case - HELD - Defendant's costs contrasted starkly with plaintiff's costs of little over $7,000 - Litigation stakes were not as high as claimed - Scale of costs under High Court Rules 1985 would have resulted in award of about $4,000 which reflected reasonable fee of about $6,000 - Reasonable costs for defendant was $7,000 - No reason to depart from two-thirds starting point - Defendant entitled to costs of $4,666 - Defendant entitled to disbursements of $73,13
Result: Costs in favour of defendant ($4,666) ; Disbursements ($73,13)
Gurleyen v Riyad
14 Jun 2006, Couch J, WC 9/06, (1 pages)
COSTS - Unsuccessful non de novo challenge (see: WC 14A/05) - Defendant sought actual costs of $10,000 and disbursements of $675.84 - Defendant received legal aid - Defendant alleged conduct of plaintiff contributed unnecessarily to costs incurred - Defendant alleged that at counsel's standard hourly rate work done indicated fees of $17,092 - Plaintiff alleged impecunious - No credible evidence of impecuniosity tendered - Some matters regarding plaintiff's conduct taken into account by Authority's costs award and Court's assessing remedies - Court would not take matters into account twice - Appropriate award of costs was $8,500 plus full disbursements of $675.84 - Costs in favour of defendant
Result: Costs in favour of defendant ($8,500); Disbursements ($675.84)
Hammond & Anor v Bakel's Edible Oils (NZ) Ltd
2 May 2007, J scott, AA 6B/07, (2 pages)
COSTS - Successful personal grievance - One day investigation meeting - Applicants sought costs of $889 plus disbursements of $622 - Respondent submitted costs should lie where they fall as it incurred significant costs due to applicants failure to raise concerns in timely manner, which would have avoided matter - Applicants represented by union - Appropriate to award costs to Union that successfully represented members - Costs extremely modest given length of hearing and preparation required for two applicants - Respondent to pay costs of $889 plus $429 disbursements
Result: Costs in favour of applicants ($888.88) ; Disbursements ($429.10)
Hawea v The Attorney General in respect of The Chief Executive Officer of the Child Youth & Family Services of Wellington
27 Apr 2007, D King, AA 127/07, (2 pages)
COSTS - Personal grievance not raised within 90 days - One hour investigation meeting - Respondent sought contribution of $2,000 to total costs of $5,000 - Respondent claimed applicant raised six matters as personal grievances and preparation time was greater than length of investigation meeting - Applicant submitted reasonable contribution would be $500 - Also asked that Authority not make costs determination until other personal grievance substantively decided - Authority had delayed costs determination but applicant had not progressed other claim - In fairness to respondent costs decision should be made - Costs of $5,000 for short hearing high, but Authority accepted length of hearing not necessarily accurate indicator of preparation - Reasonable contribution of $1,000 awarded - Respondent also sought disbursements, including costs associated with out of town counsel - Given respondent prepared to waive accommodation charge, and as applicant on notice travel disbursements would be claimed, airfares and taxi costs included in disbursements
Result: Costs in favour of respondent ($1,000) ; Disbursements ($584.11)(Airfares) ; ($79.15)(Taxi fares) ; ($11.88)(Tolls and photocopying)
Hurliman v Auckland College of Natural Medicine Ltd
19 Apr 2007, D King, AA 112/07, (2 pages)
COSTS - Partially successful personal grievance - Length of investigation meeting not specified - Applicant submitted respondent's conduct disruptive, nonsensical and unnecessarily prolonged investigation - Applicant incurred costs of $2,576 - Applicant accepted reasonable contribution to respondent's costs fair - Rejected Calderbank offer made by respondent five days prior to investigation - Respondent's costs were $16,819 and it sought full costs - Applicant to pay reasonable contribution to costs of $2,500
Result: Costs in favour of respondent ($2,500)
Ioane v Waitakere City Council
2 May 2007, Perkins, J, AC 20/07, (1 pages)
COSTS - Successful appeal against decision of Employment Tribunal - 2 day Court hearing - Plaintiff sought contribution to $9,069.85 costs in Tribunal and $10,283.18 costs in Court - Plaintiff legally aided - Defendant submitted Court had no jurisdiction to award costs in Tribunal and Tribunal functus officio due to parties' failure to follow timetabling limits - Defendant submitted costs in Court should lie where they fell or follow normal principles - HELD - Tribunal not functus officio - Court had no jurisdiction to award costs for Tribunal proceedings - Not prepared to let Court costs lie where they fell - Costs should follow event despite reinstatement being rejected - Fees allowed by Legal Services Agency for Court hearing very modest - Court took usual approach of allowing two thirds of reasonable fees - Costs in favour of plaintiff ($6,800)
McGrath v Labour Inspector (J Henning)
29 Aug 2006, J Crichton, CA 132/06, (3 pages)
DISPUTE - Objection by applicant to demand notice issued by Labour Inspector - No appearance by applicant - Authority dealt with objections raised by applicant - Nothing turned on absence of reference number on notice - Applicant's failure to attend meant Authority unable to consider contention employee received all monies owing - No evidence regarding allegation employee did not work appropriately - Even if evidence available, argument would need to be advanced to point failure to work impacted on basis for remuneration - Respondent's obligation as employer existed whether or not employee subject of job subsidy - Revised calculation in demand notice reflected monies owing - Applicant directed to pay revised sum - COSTS - Costs to lie where they fall
Result: Application dismissed ; Orders accordingly ; Costs to lie where they fall
Samson v K & T Renata Transport Ltd
24 Apr 2007, M Urlich, AA 120/07, (2 pages)
COSTS - Successful personal grievance - Less than one day investigation meeting - Applicant sought significant contribution to total costs of $5,139.60 - Respondent made no submissions - Authority took into account importance to parties - Respondent to pay contribution to costs of $2,000 plus filing fee
Result: Costs in favour of applicant ($2,000) ; Disbursements ($70) (Filing fee)
Smith v Nga Kairauhii Trust
20 Feb 2007, D Asher, WA 29/07, (4 pages)
COSTS - Personal grievance raised out of time - Applicant legally aided - Respondent claimed recovery of costs governed by Legal Services Act 2000 - Claimed incurred significant unnecessary costs, with total costs being $6,302 - Claimed funds normally channelled toward advancing Maori health went to defending applicant's claim - Applicant asked cost issue be stayed pending outcome of application for leave to appeal - No reason not to award costs on grounds challenge lodged or because applicant beneficiary and continued to be legally aided - Although investigation heard on papers, parties invested considerable effort in investigation - Trust entirely successful - Given nature of case, reasonable settlement offer declined by applicant, and scope of Authority's jurisdiction, reasonable contribution to costs of respondent if applicant not legally aided would have been $3,500 - Applicant ordered to pay contribution to costs of $50
Result: Costs in favour of respondent ($50)
Taylor v eCom New Zealand Ltd
28 Nov 2006, K Raureti, AA 29B/06, (3 pages)
COSTS - Costs sought in respect of three separate investigation meetings - In first determination applicant granted interim reinstatement - Second investigation found dismissal justified - Also held applicant unjustifiably suspended but no award of compensation for humiliation or distress made - Third determination concerned unsuccessful arrears claim - Respondent's actual costs were $16,733 plus disbursements - Sought full costs incurred until second investigation and 75 percent of balance, a total of $12,447 - Alternatively sought 75 percent of reasonable costs, being $9,799 - Applicant argued costs should not exceed those normally awarded by Authority for two day meeting, with some concession for applicant's success with interim reinstatement application - Respondent submitted weight should be placed on applicant's rejection of two Calderbank offers - Nothing to suggest first offer anything other than without prejudice exchange between parties during attempts to negotiate resolution - Not regarded as Calderbank offer - Second offer clearly Calderbank offer and taken into consideration by Authority - Applicant paid for professional legal services throughout relevant period of offer and suggestion did not understand it not accepted - Appropriate for applicant to contribute $7,500 towards respondent's costs
Result: Costs in favour of respondent ($7,500)
Vaile v West Coast District Health Board
16 Aug 2006, P Cheyne, CA 81A/06, (2 pages)
COSTS - Unsuccessful personal grievance - 1½ day investigation meeting Respondent sought contribution to costs of $1,600 plus disbursements - Claim based on meeting time, mediation, allowance, and hourly rate - Authority took reference to "day and a half" as meaning factor of 1.5 times hearing time giving total reasonable professional time - Professional time required to participate in investigation different matter from might have been required to defend litigation - Mediation declined by respondent, then directed by Authority - Direction inevitable and mediation would have been proper forum for problem - Time spent engaging Authority after statement of reply filed therefore unnecessary - Mediation not part of investigation process and preparation for it not relevant - No evidence applicant not in position to meet modest costs - Proper course was to make lower than usual contribution award - Authority estimated professional time for investigative process around $1,400 - No evidence applicant unable to meet modest costs award - Applicant ordered to pay contribution of $600 to costs plus $649 disbursements
Result: Costs in favour of respondent ($600) ; Disbursements ($649)(Travel costs)
Van der Walt v Able Metal Products Ltd
30 Apr 2007, J Scott, AA 46A/07, (2 pages)
COSTS - Unsuccessful personal grievance - Length of investigation meeting not specified - Respondent's total costs were $5,841 - Claimed as small business with fewer resources than many other employers Authority should consider award of full costs - Applicant submitted costs should lie where they fall - Unusual case as applicant unjustifiably dismissed but Authority found parties resolved grievance and applicant returned to work - Comment that applicant's second dismissal also unjustified, but no grievance raised in respect of it, and contribution would have disentitled him to remedies - Relevant principles those set out in PBO Ltd(formerly Rush Security Ltd) v Da Cruz (cited below) rather than those in Binnie v Pacific Health Ltd or Health Waikato Ltd v Elmsly (cited below) - Modest order in respondent's favour appropriate
Result: Costs in favour of respondent ($1,000)
Wilson (Labour Inspector) v Dey Street Management Ltd
8 Nov 2006, J Scott, AA 341/06, (2 pages)
ARREARS OF HOLIDAY PAY - Applicant Labour Inspector sought to recover holiday pay on behalf of two former employees of respondent - No appearance by respondent - In previous communication respondent had not disputed amount owed - Arrears due and owing - Interest 8.5% - COSTS - Applicant entitled to filing fee - Hostel managers
Result: Application granted ; Arrears of holiday pay ($5,732.51)(KO) ; ($2,561.56)(DO) Disbursements in favour of applicant ($70)(Filing fee)
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