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Busby v Talent Base Ltd
20 Jul 2006, RA Monaghan, AA 247/06, (6 pages)
PRACTICE AND PROCEDURE - Application to reopen investigation - Respondent claimed out of country and unaware employment relationship problem filed - Disputed amounts awarded to applicant - Background did not make for compelling application to reopen - However, apparent original orders should be amended - Unpaid wages and holiday pay to be recalculated - Qualifying billings for commission reduced by agreement - Written agreement silent about commission for billings in excess of $28,000 - Applying usual approach to interpretation Authority might have accepted no commission payable on those billings - However, commission supposed to provide incentive and lack of further commission was disincentive - Authority did not accept that was parties' intention and no evidence to suggest intended to cap commission - Commission payable on billings over $28,000 at top rate of sliding scale - $7,185 commission payable - Given applicant's acknowledgment of overpayment, parties urged to take pragmatic approach to resolving issue of deductions - Leave reserved if unable to resolve matter - PENALTY - Authority allowed reintroduction of penalty application withdrawn at original investigation, but declined to address additional application for penalties against director personally - Failure to attend to final payment breached employment agreement - Subsequent payment attempt to remedy breach and weighed in respondent's favour - Reason for not paying commission not very compelling - Timely payment of wages too important to allow failure to address matter to go unpenalised - Director inexcusably lax - $2,000 penalty for breach of employment agreement - Authority did not believe actions reached level of deliberate, serious, or sustained breaches of duty of good faith set out in s4A Employment Relations Act 2000 - Declined to order further penalty for breach of good faith - Talent manager
Result: Orders accordingly ; Penalty ($2,000)(Payable to Crown) ; Interest (7.5%) ; Costs reserved
Eruera-Morrison v New Zealand Post
21 Dec 2006, Travis J, AC 75/06, (3 pages)
PRACTICE AND PROCEDURE - Challenge to determination of Employment Relations Authority - Interlocutory judgment - Whether Court should request good faith report - Section 181 Employment Relations Act 2000 - Plaintiff dismissed for allegedly taking cell phone - Plaintiff refused to take oath or affirmation or give viva voce evidence before Authority - Plaintiff filed affidavit and attended investigation meeting and Authority heard from other witnesses - Alleged plaintiff had propensity to give answers she believed questioner was seeking due to being victim of domestic violence - HELD - Latter feature led Court to conclude that it was likely that plaintiff facilitated rather than obstructed the Authority's investigation - Authority did not clearly signal that there had been obstruction by plaintiff and appeared to have been able to proceed with investigation - Was borderline case - In interests of expediting matter and reducing cost, Court decided not exercise its discretion to request good faith report
Result: Application dismissed
Fisher v Fisher & Anor
1 Feb 2007, Perkins J, AC 2/07, (1 pages)
PRACTICE AND PROCEDURE - De novo challenge to determination of Employment Relations Authority - Interlocutory judgment - Application for leave to file statement of defence out of time - Ten day delay - Plaintiff opposed defendant's application but withdrew that opposition one day before hearing - HELD - Was appropriate for leave to be granted - Delay was short and clearly result of oversight - Subsequent information showed explanation for delay - Application granted - Timetabling directions given - COSTS - Plaintiff's opposition to defendant's application unreasonable - No real prejudice suffered by plaintiff - Costs to lie where they fell
Result: Application granted ; Order accordingly ; Costs to lie where they fall
Fletcher v ATL Systems Ltd
24 Jan 2007, R Arthur, AA 17/07, (4 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Applicant received base salary plus commission - Whether commission payments properly included in holiday pay calculated under Holidays Act 1981 and Holidays Act 2003 - Applicant claimed important question of law arose regarding meaning of "holiday pay" and "on pay" in legislation - Respondent opposed application - Whichever interpretation about inclusion of commission payments correct likely to be of wider interest - Issue may not appear contentious as gross earnings definition in legislation includes commission payments in holiday pay calculation - Findings of fact may be decisive on what was or was not included in payments - However, how this was done or not done were questions of law - Also, parties needed guidance on correct method of calculation as contentious between them - Authority satisfied answers to questions of interpretation will be decisive -Important questions of law likely to arise other than incidentally - No sufficient reason not to order removal - Removal ordered
Result: Application granted ; Matter removed to Court ; No order for costs
Houston v Oldco PTI Ltd
13 Oct 2005, M Urlich, AA 414/05, (2 pages)
PRACTICE AND PROCEDURE - Application for blanket suppression order - Respondent claimed evidence commercially sensitive, or so entwined with commercially sensitive evidence unable to be separated - Blanket suppression orders issued by High Court in related litigation still applied - Applicant opposed suppression - Respondent alleged disclosure of any of material for which suppression order sought likely to rock confidence of respondent's customers or suppliers, whose goodwill was respondent's major asset - Fact principal shareholder in receivership in public domain - Applicant's relationship to shareholder in public domain - Ending of parties relationship and connection to receivership of principal shareholder in public domain - Issues historical and respondent continued to trade - Authority not satisfied Anderson (cited below) test for suppression met - Could seek suppression of evidence during course of investigation - Respondent's counsel sought adjournment on grounds did not have instructions to proceed on that basis and advised challenge to refusal to grant suppression order would be sought - Adjournment granted - Determination only distributed to parties until outcome of challenge known - Authority's file not to be released without order of Authority
Result: Application dismissed (Suppression order) ; Investigation adjourned ; No order for costs
Miller v Michael Pearcy Investments Ltd
18 Jan 2007, Couch J, CC 1/07, (1 pages)
PRACTICE AND PROCEDURE - Application to recall judgment (see: CC 11/06) - Court held that plaintiff was employee and confirmed the terms of the employment agreement - Applicant alleged was neither necessary nor proper for Court to determine specific terms of agreement - Alleged Court's jurisdiction was limited to issue of employment status - Alleged unfair and unjust for Court to have made findings regarding specific terms of agreement - Alleged if known that Court would decide terms of agreement, applicant would have provided further evidence - Respondent accepted findings about certain term were incorrect and was appropriate to recall judgment - HELD - Court had to resolve terms of agreement before it could consider its effect on nature of employment relationship - Having made those findings of fact, Court was obliged to record them - Court misconstrued parts of evidence - Respondent's concession amounted to very special reason to recall substantive judgment for correction of that finding of fact - Judgment to be recalled and reissued with amendments - Sales person
Result: Application granted (recall judgment); Orders accordingly ; Costs reserved
Service and Food Workers Union Nga Ringa Tota Inc v Auckland District Health Board and 19 Ors
1 Feb 2007, D Asher, WA 16/07, (3 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Applicant claimed respondents in breach of duty of good faith to conclude multi-employer collective agreement ("MECA") under s33 Employment Relations Act 2000 ("ERA") - Also claimed in breach of duty in ERA Schedule 1B cl 6(1) to support MECA - Issue novel, untested and central to employment relationship problem - Important questions of law likely to arise other than incidentally - Matter also involved essential service bargaining problem, issue of promotion of productive employment relationships in public sector in context of Schedule 1B obligations that every employer be a good employer (cl 5) and, parties obligation to recognise and support Treaty of Waitangi principles (cl 7) - Respondents did not submit statements in reply - Satisfied statements of defence required by Court would properly inform it of respondents' positions and avoid unnecessary costs - Requirement for statements in reply waivered - Matter removed to Court
Result: Application granted ; Costs reserved
Tairi v Bay of Plenty District Health Board
27 Jul 2006, J Scott, AA 252/06, (9 pages)
PRACTICE AND PROCEDURE - Application to strike out - Whether accord and satisfaction - Applicant claimed dismissal unjustified - Respondent asserted agreement for additional three weeks pay settled all issues between parties - After respondent advised intended to dismiss applicant, union delegate met with it and reached agreement - Delegate authorised to act for applicant - Applicant claimed told by delegate union had agreed not to take matter further, but applicant could pursue it personally - No signed settlement agreement - Union delegate died before investigation meeting - Acting as applicant's agent, delegate reached agreement to conclude all matters between parties - To find otherwise would offend against good faith provisions of Employment Relations Act 2000 - Situation made clear in subsequent letter to applicant - Board entitled to take acceptance of payment as confirmation of agreement - Respondent's failure to point out full and final nature of settlement when grievance submitted did not amount to it accepting submission - Personal grievance struck out - Carpenter
Result: Application granted ; Personal grievance struck out ; Costs reserved
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