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Employment Cases - April 2008 |
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Dispute - Employment Relations Act 2000
General Distributors Ltd v National Distribution Union
14 Aug 2007, A Dumbleton, AA 248/07, (9 pages)
DISPUTE – Interpretation of collective employment agreement (“CEA”) – Supermarket closure due to expired lease – Respondent claimed employees redundant as result of closure – Applicant intended to relocate employees to alternative locations – CEA provided that in case of redundancy company must endeavour to relocate within it, or provide compensation – Redundancy provisions come into operation when redundancy situation as defined in CEA - Interpretation of CEA definition of redundancy - CEA defined redundancy as company having labour surplus to requirements because of closing down of part of company’s operation due to re-organisation requiring permanent reduction in employees at worksite – Applicant claimed circumstances not redundancy because closure of single worksite did not cause labour surplus on company-wide scale – Applicant alleged this was consistent with intent of parties as expressed in CEA because transfer of positions avoided loss of employment, disruption and inconvenience to workers – Respondent alleged redundancy provision to be interpreted on scale of specific worksite, not company-wide needs of employer, referring to McCain Foods (NZ) Ltd v Service & Food Workers Union Inc [2004] 2 ERNZ 252 - Authority found McCain provision materially same as present – Closure of single worksite resulted in redundancy under CEA definition – Employers may not use relocation to avoid responsibilities under redundancy provisions of agreement - Applicant’s preferred interpretation circumvented CEA redundancy provision, as it was relocation under different guise – Parties’ intentions ascertained from meaning of words of CEA – CEA redundancy where employer closed supermarket and transferred employees to other stores operated by it – Therefore not mandatory for employees to seek relocation etc in lieu of CEA’s provision for redundancy compensation – Remedies - Declaration respondent’s interpretation of redundancy correct
Result: Application dismissed ; Declaration in favour of respondent ; Costs reserved
Barrett v Horion 2 Ltd
19 May 2008, D King, AA 181/08, (2 pages)
COSTS - Unsuccessful personal grievance - One day investigation meeting - Respondent incurred costs of $29,424 and sought $19,616 as contribution to costs - Submitted appropriate case to award substantial contribution - Spent significant sum defending itself against number of claims necessitating research and preparation of extensive evidence - Authority took into account applicant's financial position and was not persuaded should be departure from notional daily rate - Respondent entitled to contribution to costs of $2,500 plus disbursements, subject to respondent providing details and receipts to Authority
Result: Costs in favour of respondent ($2,500)
Maritime Union of New Zealand & Ors v TLNZ Ltd & Anor
10 Apr 2008, Colgan CJ, AC 7/08, (3 pages)
COSTS – Proceedings removed from Employment Relations Authority – Plaintiffs unsuccessfully challenged lawfulness of defendant’s proposed drug and alcohol policies – Defendants sought $142,931.25, being two-thirds of actual costs of $216,562.50 – 7 hearing days plus half-day site visit – Defendants provided no detail of how costs incurred – Plaintiffs submitted lack of detail meant costs should be determined under High Court Rules – Plaintiffs contended essentially a dispute case and all parties likely to benefit from judgment – Further, that a high costs award would discourage unions from engaging in litigation to challenge employer-imposed policies – HELD – Present case in nature of generalised dispute – Substantive judgment benefited all parties and others in the same field – Different principles apply in determining costs – Real disincentive to litigation if large costs awards against unsuccessful party – Costs considered under High Court Rules – Costs of $35,000 plus $5,000 disbursements in favour of defendants – Stevedores
Result: Costs in favour of defendants ($35,000 excluding GST plus $5,000 including GST for
disbursements)
Morrison v Cova Ltd
26 May 2008, V Campbell, AA 27A/08, (2 pages)
COSTS - Partially successful personal grievance - Length of investigation meeting not specified - Respondent submitted should be awarded costs as applicant did not win case advanced in statement of problem - Although applicant's dismissal justified, suspension caused unjustified disadvantage - Both parties partially successful therefore not equitable for costs to be awarded to either party
Result: Costs to lie where they fall
Williams v The Warehouse Ltd
19 May 2008, D King, AA 15A/08, (2 pages)
COSTS - Unsuccessful personal grievance - Length of investigation meeting not specified - Respondent incurred legal fees in excess of $10,000 and sought contribution of $2,000 - Applicant to pay respondent's costs
Result: Costs in favour of respondent ($2,000)
Xian v The Herb Patch Ltd
21 May 2008, D King, AA 184/08, (2 pages)
COSTS - Unsuccessful personal grievance - Two day investigation meeting - Respondent sought contribution to total costs of $7,868 - Hearing prolonged by applicant's reluctance to answer questions - Applicant submitted unfair to pay respondent's costs as respondent had chosen to hire a lawyer, therefore should bear the costs of doing so - Respondent had to expend time and money to defend unmeritorious claim - Due to applicant's conduct, which lengthened hearing time , Authority deemed it fair to depart from notional daily rate
Result: Costs in favour of respondent ($3,500)
General Distributors Ltd v National Distribution Union
14 Aug 2007, A Dumbleton, AA 248/07, (9 pages)
DISPUTE – Interpretation of collective employment agreement (“CEA”) – Supermarket closure due to expired lease – Respondent claimed employees redundant as result of closure – Applicant intended to relocate employees to alternative locations – CEA provided that in case of redundancy company must endeavour to relocate within it, or provide compensation – Redundancy provisions come into operation when redundancy situation as defined in CEA - Interpretation of CEA definition of redundancy - CEA defined redundancy as company having labour surplus to requirements because of closing down of part of company’s operation due to re-organisation requiring permanent reduction in employees at worksite – Applicant claimed circumstances not redundancy because closure of single worksite did not cause labour surplus on company-wide scale – Applicant alleged this was consistent with intent of parties as expressed in CEA because transfer of positions avoided loss of employment, disruption and inconvenience to workers – Respondent alleged redundancy provision to be interpreted on scale of specific worksite, not company-wide needs of employer, referring to McCain Foods (NZ) Ltd v Service & Food Workers Union Inc [2004] 2 ERNZ 252 - Authority found McCain provision materially same as present – Closure of single worksite resulted in redundancy under CEA definition – Employers may not use relocation to avoid responsibilities under redundancy provisions of agreement - Applicant’s preferred interpretation circumvented CEA redundancy provision, as it was relocation under different guise – Parties’ intentions ascertained from meaning of words of CEA – CEA redundancy where employer closed supermarket and transferred employees to other stores operated by it – Therefore not mandatory for employees to seek relocation etc in lieu of CEA’s provision for redundancy compensation – Remedies - Declaration respondent’s interpretation of redundancy correct
Result: Application dismissed ; Declaration in favour of respondent ; Costs reserved
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