EMPLOYMENT CASES SUMMARY March 2008 - NZ Department of Labour

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Ayers v Quad 2000 Ltd

12 Nov 2007, P Montgomery, CA 136/07, (5 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant summarily dismissed when respondent thought smoking cannabis at work - Claimed actually smoking roll-your-own cigarette - Respondent's director searched car at time but found no evidence to support allegation - Full inquiry may have established one of other employees responsible for smell on applicant's clothing - While search of vehicle practical step to take it fell well short of what fair and reasonable employer would have done in circumstances - Dismissal unjustified - Remedies - Applicant sought 20 weeks lost wages but Authority mindful respondent modest enterprise and award as sought could bring heavier burden than warranted - COSTS - ½ day investigation meeting - Applicant sought costs of $4,000 - Claimed additional time necessary due to respondent's lack of co-operation - Appropriate to award $2,200 contribution to costs - Plasterer

Result: Application granted ; Reimbursement of lost wages ($7,280)(13 weeks) ; Compensation for humiliation etc ($4,500) ; Holiday pay ($92.47) ; Costs in favour of applicant ($2,200)

Bolton v Nuwaiseeb Ltd

23 Jan 2008, D Asher, WA 8/08, (3 pages)
COSTS - Partially successful personal grievance - ½ day investigation meeting - Applicant sought full costs of $1,519 - Expected costs to increase as respondent had not complied with Authority's determination and further action required - Included mediation costs - Respondent argued applicant not entitled to costs as dismissal substantively justified - Applicant made no attempt to contact respondent to discuss costs - Applicant succeeded with part of claim so costs follow event - Entitled to fair and reasonable contribution to costs of $500

Result: Costs in favour of applicant ($500)

Cooper v Jones and Anor t/a Ashhurst Service Centre

9 Jan 2008, D Asher, WA 1/08, (6 pages)
COSTS - Withdrawn personal grievance - Respondents sought contribution of $7,000 to total costs of $9,313 - Argued applicant raised employment relationship problem in bad faith and costs increased by applicant's failure to act in good conduct - Had earlier proposed parties settle matter by withdrawal of claim and parties bearing own costs - Evidence provided by police to respondent and Authority established dishonesty by applicant - By pursuing grievance against respondent's applicant effectively continuing dishonest conduct against respondent - Respondents to be fully indemnified for additional costs of $375 resulting form applicant's failure to meet deadlines - Applicant on early notice claim had no prospect of success - Respondents entitled to fair and reasonable contribution to costs

Result: Costs in favour of respondents ($7,000)

Cooper v Mars New Zealand Ltd t/a Mars Petcare

19 Feb 2008, D Asher, WA 22/08, (4 pages)
COSTS - Successful personal grievance but no remedies awarded - Less than one day investigation meeting - Costs of applicant's case incurred by union - Sought contribution to costs of $1,500 plus disbursements - Also sought to recover payment of wages for annual leave lost to applicant because of respondent's refusal to grant night shifts before and after investigation meeting to applicant as time off on pay - Respondent contended $500 appropriate costs - Request for paid time off to prepare for and participate in investigation reasonable - Amount claimed by applicant fair and reasonable

Result: Costs in favour of applicant ($1,500) ; Reimbursement of lost wages ($337.60) ; Disbursements ($70)(Filing fee)

Drummond v National Union of Public Employees Inc

8 Feb 2008, P Cheyne, CA 10/08, (4 pages)
COSTS - Partially successful personal grievance - Length of investigation meeting not specified - Both parties sought contribution to costs - Applicant's challenge to substantive determination yet to be heard - Costs determination to proceed - Applicant had success with lesser part of his claim - Could not be said to be successful party and no costs award in his favour - Applicant legally aided - Respondent's argument applicant's contributory conduct and unreliability as witness should be taken into account in costs not accepted - Respondent wholly successful in defending dismissal claim - However, significantly breached parties employment agreement and applicant's view of situation not untenable even though not upheld - Wrong to see it as successful party and not entitled to costs - Authority not required to deal with respondent's submissions relating to Legal Services Act 2000 - Costs applications by both parties declined

Result: Costs to lie where they fall

Ford v Gold Seal International Ltd

18 Feb 2008, D King, AA 50/08, (2 pages)
COSTS - Unsuccessful personal grievance, successful arrears claim - ½ day investigation meeting - Applicant sought modest costs award or for costs to lie where they fall - Respondent submitted entitled to costs totalling $1,350 - No evidence of legal representation for legal fee sought - Applicant successful in wage arrears claim therefore entitled to modest contribution to costs

Result: Costs in favour of applicant ($500)

Griffin v Petworkz Online Ltd and Anor

11 Jan 2008, V Campbell, AA 2/08, (2 pages)
COSTS - Unsuccessful application for leave to raise personal grievance - Less than ½ day investigation meeting - First respondent sought contribution to actual costs of $4,809 - First respondent provided two invoices to support costs application, one totalling $2,700 and the other $2,109 - Matter not complex and costs incurred were high - First respondent entitled to reasonable contribution to costs

Result: Costs in favour of respondent ($250)

Innes v Miyazawa

16 Jan 2008, J Crichton, CA 2/08, (3 pages)
COSTS - Applicant's claim struck out - Length of investigation meeting not specified - Respondent sought full costs associated with strike out application from applicant, or from his counsel in personal capacity - Applicant submitted costs should lie where they fall - While no doubt applicant had a claim, not one piece of evidence to support contention employed by respondent personally - Respondent gave notice would seek full costs - Completely inappropriate for applicant to put respondent to costs associated with defending himself against entirely unsustainable claim and not expect to meet costs in full - Full costs recoverable

Result: Costs in favour of respondent ($2,500)

IT Maniacs Ltd v Ford

15 Feb 2008, R A Monaghan, AA 48/08, (3 pages)
COSTS - Partially successful breach of contract claim - Successful personal grievance counterclaim but no remedies awarded - Length of investigation meeting not specified - Respondent adjudicated bankrupt - Official Assignee confirmed sought determination on costs - Respondent submitted all costs incurred for purpose of successfully establishing breach of contract - Sought contribution of $22,875 to total costs of over $30,000 to reflect unnecessary expense claimed put to - Applicant submitted he was largely successful party and sought reasonable contribution to costs of $23,496 - Respondent's dismissal based on essential same breaches as applicant's claim - Not correct to say all costs incurred were for purpose of establishing breach - Neither party could claim to be largely successful party - Calderbank offer made by respondent on date on scheduled investigation meeting - Conditions attached to offer meant rejection of it did not require applicant to contribute to costs - Costs to lie where they fall

Result: Costs to lie where they fall

Li v Astral Management Ltd

15 May 2007, J Crichton, CA 54/07, (12 pages)
ARREARS OF WAGES - Applicant supplied two purported employment agreements - Second document operative agreement - Applicant to be paid salary, not wages as claimed - Alleged worked 1,516 unpaid hours - No wage and time records - Authority accepted records not required for salaried workers - More likely applicant did work some extra hours - No entitlement to additional remuneration pursuant to employment agreement and at no stage was applicant paid less than minimum wage - No basis for arrears claim or recovery of other sums applicant claimed entitled to - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Evidence did not support any wrong doing by respondent to found disadvantage or constructive dismissal claim - Applicant absent for various periods at end of employment with only sporadic contact - Respondent's attempts to establish applicant's intentions resulted in it being warned off by applicant's friend - Applicant later returned key and removed belongings - Employment ended without resignation or indication applicant might return to work, however friend of applicant indicated she had new job - In circumstances, respondent could not be blamed for end of employment relationship - No personal grievance - Applicant's witnesses included two "secret" witnesses who gave evidence on footing identity not disclosed to respondent - COSTS - Normally costs would be reserved - However, applicant's financial means precluded her form making realistic contribution to costs - Costs to lie where they fall - Restaurant worker

Result: Application dismissed ; Costs to lie where they fall

McKee v Corringhma Investments Ltd

11 Feb 2008, D Asher, WA 15/08, (3 pages)
COSTS - Successful personal grievance - One day investigation meeting - Applicant incurred total costs of $6,277 - Submitted costs should follow event and sought highest possible award due to respondent's delaying tactics - Respondent submitted would challenge Authority's decision but no challenge lodged within time limit - Lack of participation by respondent in substantive case - Lack of participation caused delays in resolution of employment problem - Deliberate pattern of evasive conduct by the respondent which is relevant to costs - Applicant entitled to fair and reasonable contribution to costs

Result: Cost in favour of applicant ($3,500)

Oosthuysen v Humes Industries Ltd

16 Jan 2008, J Crichton, CA 3/08, (2 pages)
COSTS - Unsuccessful personal grievance - Less than one day investigation meeting - Respondent sought contribution to total costs of $2,962 - Applicant argued costs should lie where they fall alternatively, modest contribution of $500 should be made - Respondent argued for costs at higher end of scale for tariff-based approach - Costs awarded to reflect length of hearing and appropriateness of the overriding principle costs should follow the event

Result: Costs in favour of respondent ($1,250)

Pantoja v GN Networks Ltd

14 Jan 2008, J Wilson, AA 6/08, (3 pages)
COSTS - Authority had concluded it lacked jurisdiction as applicant not employee - Less than ½ day investigation meeting - Respondent sought contribution to costs of $4,850 - Argued applicant's claim frivolous, without merit and drew out proceedings unnecessarily - Applicant suggested Authority would not have been necessary if respondent had been fair and honest - Authority sympathetic to applicant, however he did lose substantive case - Costs to follow event - Respondent entitled to contribution to costs

Result: Costs in favour of applicant ($500)

Park v K & C Howick Ltd t/a Howick Kim's Club and Anor

21 Feb 2007, D King, AA 58/08, (2 pages)
COSTS - Unsuccessful personal grievance - Three day investigation meeting - Second respondent's actual costs were $10,000 and sought contribution to costs of $7,500 - Argued applicant's conduct unreasonably and unnecessarily increased costs - Irrelevant evidence introduced and resulted in increased costs - Respondent's costs not unreasonable and entitled to contribution to costs

Result: Costs in favour of second respondent ($4,500)

Richmond v Armstrong Alarms Ltd

17 Jan 2008, M Urlich, AA 13/08, (3 pages)
COSTS - Successful personal grievance - ½ day investigation meeting - Applicant's total costs were $6,342 - Submitted contribution of $4,592 would be fair and reasonable - Respondent argued any award for costs should be modest - Calderbank offer made after investigation meeting not valid - Applicant made reasonable settlement offer and matter amenable to settlement - Applicant's costs high given nature of matter - No factual disagreement between parties - Award of costs warranted

Result: Costs in favour of applicant ($3,000)

Schnauer v Independent Liquor (NZ) Ltd

11 Apr 2007, Y S Oldfield, AA 44A/07, (2 pages)
COSTS - Successful personal grievance - One day investigation meeting - Applicant sought total costs $13,775 but submitted significant amount of counsel's time written off - Alternatively sought costs of $9,000 - Argued respondent's ability to pay not a factor and given substantive award there was potential for award to be nugatory - Not a complex matter and no need for higher than usual level of preparation - Authority accepted two days preparation time reasonable for straightforward matter for total of 20 hours professional time - At rate of $300/hour gave costs of $6,000 - Two thirds contribution appropriate

Result: Costs in favour of applicant ($4,000)