Previous Section | Table of Contents | Next Section
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)
Banjamin v Bennett and Anor t/a New World Island Bay
31 Oct 2006, PR Stapp, WA 149/06, (2 pages)
PRACTICE AND PROCEDURE - Application to strike out proceedings - Application dealt with on papers - Date for investigation meeting given but applicant unable to be contacted - Representative advised no longer able to act for applicant - Applicant failed to meet requirement to keep in touch with Authority, provide address for service, and ensure representative able to contact her - Respondent entitled to speedy resolution - Given applicant could not be served notice of investigation meeting, matter closed
Result: Application granted
Crooks v Pratt & Whitney Air New Zealand Services
2 Apr 2007, H Doyle, CA 35/07, (12 pages)
UNJUSTIFIED DISADVANTAGE - Applicant had sexual relationship with 14 year old daughter of co-worker ("Z") - Arrested and returned to work after released on bail - Respondent realised likely staff may take view applicant guilty and make views known to him - Told employees not to harass applicant and he was innocent until proven otherwise - Applicant returned to work - Alleged disadvantaged by respondent's actions following incidents involving other employees - Applicant pleaded guilty and applied for sentence deferral - Court indicated deferral possible if imprisonment meant applicant likely to be dismissed - Respondent did not confirm would be dismissed - Applicant imprisoned then dismissed - Authority found fair and reasonable employer would not have done anything to influence sentencing - Justified in refusing to confirm dismissal likely until knew outcome of sentencing - None of respondent's actions unjustified - No disadvantage - UNJUSTIFIED DISMISSAL - Misconduct - Under disciplinary policy, respondent entitled to consider continued employment having regard to its reputation, responsibilities of applicant, nature of offence and other relevant factors - Applicant claimed conviction had no bearing on position and no effect on respondent's reputation - Authority did not accept because conduct occurred outside work could not amount to misconduct - Respondent entitled to consider continued employment when employee guilty of criminal offence at work or off duty - Publicity impacted on respondent's reputation - Fair and reasonable employer entitled to conclude sentencing meant applicant could not fulfil employment obligations, even taking into account possibility of home detention and leave - Applicant's actions caused him to be placed in position where could not perform obligations - Also entitled to conclude circumstances (including nature of conviction and publication of sentencing) meant foundation of trust and confidence significantly undermined - Dismissal substantively justified - Respondent visited applicant in prison and left dismissal letter with officials - Fair and reasonable employer would have written to applicant prior to visit advising dismissal considered - Meeting could have been opportunity to explain or mitigate conduct - On that basis, dismissal unjustified - However, even with fair process, outcome would have been same - Remedies - Blameworthy conduct so significant not entitled to remedies, save as to reasonable contribution to costs - Contributory conduct 100 percent - PRACTICE AND PROCDURE - Publication of names of daughter, Z, and other employee prohibited - Publication of emails between Z's union and respondent also prohibited - Length of service 15 years and three months with respondent and its predecessor - Aircraft engineer
Result: Application dismissed (Unjustified disadvantage) ; Application granted (Unjustified dismissal) ; Orders accordingly ; Costs reserved
Dr Y v Bay of Plenty District Health Board
27 Apr 2007, R Arthur, AA 128/07, (16 pages)
UNJUSTIFIED DISADVANTAGE - Applicant treated patient ("A") at respondent - After A declared feelings for applicant, A discharged to GP's care - Respondent investigated applicant's management of A's care after she committed suicide - Claimed disadvantaged by investigation and placement on garden leave - Whether full and fair investigation - By considering disciplinary action solely on circumstances of A's case, and not other patients, respondent did not fail to fully investigate - Applicant not told of recommendation he be dismissed for serious misconduct - Potential procedural error remedied by agreement serious misconduct conclusion was in relation to clinical issues, not employment - Review conducted properly and not, as applicant claimed, as part of campaign to undermine him - Applicant agreed to garden leave - Unjustified suspension claim failed - Force in argument matter took too long to resolve, but delay not solely respondent's responsibility - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Whether investigation disclosed conduct capable of being serious misconduct - Investigation found applicant failed to recognise A's emotional attachment and develop risk management plan - Concluded applicant's practice seriously threatened A's wellbeing - Provision of regular professional supervision relevant to whether actions serious misconduct in circumstances - Evidence supported view applicant resisted supervision - Despite knowledge of A's situation, applicant arranged for news of clinician change to be made by GP - Risk not adequately managed by applicant - A's medical file lacked proper diagnosis and documentation - Sufficient to raise significant concerns - Oram (cited below) standard applied - Respondent could reasonably conclude inadequacies in management of A's care amounted to misconduct of sufficient gravity to deeply impair basic trust and confidence - Entitled to dismiss for serious misconduct - Outcome may have been different under s103A Employment Relations Act 2000 test - Dismissal justified - PRACTICE AND PROCEDURE - Applicant's details (apart from gender and occupation) subject to non-publication order - A's and other patients' details also subject to order - Application for non-publication of respondent's name declined in public interest - Length of service 11 years - Psychiatrist
Result: Application dismissed (Unjustified disadvantage, unjustified dismissal) ; Application granted (Non-publication order) ; Orders accordingly ; Costs reserved
Eastern Bay Independent Industrial Workers Union Incorporated v Carter Holt Harvey Ltd
18 Oct 2006, V Campbell, AA 322/06, (5 pages)
PRACTICE AND PROCEDURE - Application to reopen investigation - In earlier determination applicant and other parties applied for compliance with mediated settlement - Term of settlement to establish working party that would make recommendations on performance recognition scheme - Work outsourced prior to establishment of working party - Authority declined to order compliance as no performance to recognise and any scheme had no practical application - Determination challenged on narrow point whether was "no performance to recognise - Court held some work done by applicant's members to which scheme could apply - Applicant treated present proceedings as application to reopen investigation - Opportunity to challenge determination de novo when first published - No unfairness or miscarriage of justice in relation to earlier determination - No subsequent material evidence discovered - No complaint about way investigation undertaken - Applicant and other parties exercised right of appeal in manner chosen in Court proceedings - Sought to relitigate same subject matter for same outcome dealt with in earlier determination - Not open to applicant to relitigate - No timeframes specified for applications for reopening - Reasonable expectation applications would be timely, and if not, explanation provided - No explanation for long delay between Court decision and present application - Given background unfathomable parties unable to resolve problems outside Authority
Result: Application dismissed ; Costs reserved
Iosua v Morgan & Anor
3 Nov 2006, L Robinson, AA 337/06, (3 pages)
PRACTICE AND PROCEDURE - No appearance by either respondent - When contacted by Support Officer, first respondent claimed forgot about investigation meeting but wanted to attend and "had people lined up" - Suggested investigation meeting be reconvened later - Initially Authority did not consider either respondent had "good cause" for failing to attend and proceeded to act fully in matter as if they had attended - Identity of employer - Applicant's employment agreement clearly disclosed second respondent was employer - Second respondent "struck off" companies register - Accordingly there was no second respondent and it could not attend - Applicant remained aggrieved and indicated intention to investigate company matters further - Investigation suspended - Applicant to advise Authority of intentions by given date or investigation would be concluded and file closed - First respondent to be served with determination - Second respondent struck out
Result: Orders accordingly ; No order for costs
Lynch v Turks Poultry Farm Ltd
20 Oct 2006, D Asher, WA 141/06, (2 pages)
PRACTICE AND PROCEDURE - Application withdrawn at investigation meeting - Parties agreed costs to lie where they fall
Maccaferri NZ Ltd v Langham
10 Apr 2007, P Cheyne, CA 37/07, (7 pages)
COMPLIANCE ORDER - Restraint of trade - Applicant sought order requiring respondent to comply with restraint of trade provision in unsigned employment agreement - Respondent claimed not bound by agreement - Claimed employment agreement formed orally before received draft written agreement - Respondent argued written offer no longer available because applicant did not respondent by stipulated date - Worked for applicant more than a year and assumed responsibilities and benefits of position - Respondent accepted terms of agreement not so much by silence but by actions - Whether restraint enforceable - No dispute level of remuneration agreed orally - Respondent argued express consideration past and ineffective to support restraint - Offer accepted on receipt of draft agreement - At time offer accepted, consideration for restraint not past - Respondent also claimed applicant breached agreement so could not rely on restraint - No repudiatory breach as resigned and respondent paid notice - Six month restraint period covering whole of New Zealand reasonable - Valid and enforceable restraint of trade - Authority found applicant conveyed message employment ended immediately notwithstanding intention to put on garden leave - Respondent not disadvantaged or prejudiced by delay in applicant lodging proceedings - Did not count against granting compliance order - Whether failure to advise respondent of right to independent advice allowed him to avoid order - Answer lay with Authority's obligation to make determination in accordance with substantial merits of case - Failure of form not substance - Respondent aware of restraint but chose not to get advice - Current employment with new employer put respondent in breach of agreement - Respondent to comply with agreement and cease performance of work for new employer similar to that performed by him at applicant - Compliance ordered - PRACTICE AND PROCEDURE - Respondent gave evidence that in reliance on oral agreement with applicant, resigned from prior employment - Respondent not in employment at time accepted employment with applicant - By giving untruthful evidence obstructed Authority's investigation and failed to act in good faith - Issue of untruthful evidence to be referred to Solicitor General for appropriate action - Sales engineer
Result: Application granted ; Orders accordingly ; Costs reserved
Roland v Amalgamated Builders Ltd
30 Nov 2006, H Doyle, CA 167/06, (1 pages)
PRACTICE AND PROCEDURE - Authority had reserved leave to applicant if any issues remained after provided with full account of money paid to him following termination of employment - Applicant sought holiday pay and car insurance reimbursement - With agreement of both parties, Authority ordered respondent to pay outstanding sums within 14 days - Payment to be in settlement of all outstanding matters relating to earlier determination
Result: Application granted ; Orders accordingly ; No order for costs
Samuelu v Feltex Carpets Ltd & Anor
28 Nov 2006, G Wood, WA 171/06, (3 pages)
PRACTICE AND PROCEDURE - Applicant's claim granted urgency because submitted would not be offered employment by first respondent's purchaser, the second respondent ("GH"), if not reinstated within five days - GH added as party after declined to offer applicant employment if reinstated - Respondents argued no urgency required - In absence of undertakings to preserve applicant's employment options, and following information sale and purchase agreement could settle next day, leading to first respondent's liquidation, Authority determined to commence investigation early next day - Accepted respondents placed under extreme time pressure and may have implications for natural justice - However, appeared no alternative that would not prejudice applicant's right to pursue employment with respondents - First respondent indicated prepared to hold maximum secured level of compensation available under Companies Act 1993 in trust account, to be paid out in accordance with any Authority determination - During investigation meeting, GH gave an undertaking to not assert that employment with first respondent at time sale settled was a pre-requisite to employment with it - GH able to argue employment not offered or accepted - Claims no longer needed urgency - Applicant's could now pursue claims separately against respondents - Respondents directed to file statements in reply
Result: Orders accordingly ; Costs reserved
Watt v RD Managh Ltd t/a Odin's Marine
1 Nov 2006, M Urlich, AA 123A/06, (3 pages)
PRACTICE AND PROCEDURE - Application to reopen investigation - Authority had found applicant unjustifiably dismissed and awarded remedies - Respondent sought to reopen investigation in relation to Authority's findings and award of lost wages - Payment of lost wages already stayed - With parties consent, Authority requested information from ACC and Ministry of Social Development regarding applicant's receipt of compensation and benefits - Relevant information as to applicant's actual loss not made available to Authority during original investigation - Miscarriage of justice would occur if application not granted - Wages earned deducted from claim - Receipt of ACC did not sever period within which reimbursement could be claimed, rather, it created hiatus - Reimbursement period recommenced once worker stopped receiving ACC - Authority rejected submission ACC entitlement should be treated as WINZ benefit recoverable from award of damages - Period applicant on ACC removed from claim period - Declined to reopen investigation on grounds failure to mitigate loss denied applicant any award of lost wages - Satisfied original investigation considered issue of mitigation - Whether discretion exercised appropriately not matter for reopening application but one more properly brought by way of challenge - Authority to determine costs for substantive and reopening applications together - Respondent invited to file costs submission in relation to personal grievance
Result: Application granted in part ; Orders accordingly ; Costs reserved
Weston t/a Sportscar World v Fraser
23 Nov 2006, PR Stapp, WA 166/06, (3 pages)
PRACTICE AND PROCEDURE - Application to reopen investigation - No appearance by respondent at original investigation - Respondent alleged miscarriage of justice in relation to number of grounds - Respondent aware of details of investigation meeting and nothing prevented him being represented at it - Authority had decided no good cause for failure to attend and proceeded to act "as fully in matter before it as if that party had duly attended or been represented" - Respondent claimed genuine reason for not attending as wanted to avoid breach of Companies Act 1993 - Some real doubt whether this was genuinely the case - Authority not satisfied issues in original determination, and respondent's decision not to attend personally, or have interests represented at investigation meeting, and now that he was now available, satisfied test of substantial possibility, or a real or substantial risk, of miscarriage of justice - Authority had considered issues when it decided to proceed - No foundation to respondent's arguments for reopening - Application to reopen declined
Result: Application dismissed ; Costs reserved
Winterburn v The Open Polytechnic of New Zealand
18 Aug 2006, P R Stapp, WA 114/06, (10 pages)
PRACTICE AND PROCEDURE - By consent Authority ordered medical evidence suppressed from publication and restricted use to parties in proceedings until matter fully heard - Affidavits and documents used in proceedings also suppressed until matter fully heard except for matters reported in determination - INJUNCTION - Interim reinstatement - Alleged unjustified summary dismissal - Applicant sent emails alleging bullying and racism by manager ("Y") - Following mediation, applicant's complaints not investigated further as no details provided and she made no formal complaint - Dismissed for breach of disciplinary policy following complaint by Y about her conduct in relation to allegations - Applicant did not reasonably provide details of allegations when asked and position likely to be weak - Dismissal procedure not likely prejudicial - Issue whether respondent had grounds to reasonably conclude serious misconduct - Arguable case - Alternative remedies existed if applicant successful - Investigation meeting to be provided quickly - Active management of applicant would be required - Applicant made further allegations about institutional racism and other colleagues - Y's health affected by work environment involving applicant - Other staff unwilling to work with applicant - Did not seek reinstatement to same position and unclear how would be assisted - Balance of convenience favoured respondent - No prejudice to applicant given likelihood practicability of reinstatement and contribution would need to be considered - Application declined - Parties directed to mediation by consent
Result: Application dismissed ; Orders accordingly ; Costs reserved
Previous Section | Table of Contents | Next Section
