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Antonov v Onyx Grup Ltd
4 Jul 2007, P Cheyne, CA 75/07, (6 pages)
PRACTICE AND PROCEDURE – Applicant alleged disadvantaged and breach of contract resulting from way respondent dealt with incapacity resulting from work injury – Sought punitive damages – Exemplary damages not available for breach of contract – Applicant attempted to increase compensation claim on grievance – Explanation of why initial assessment of compensation inadequate required, amendment had no merit if simply to make up loss of damages claim - Applicant previously raised concerns with respondent and sought apology - Union took up matter – Although branch manager considered complaint not supported, decided to end matter by apologising – Apology offered and accepted – Accord and satisfaction - Applicant unable to pursue proceedings
Result: Application dismissed ; Costs reserved
Barton v Programmed Maintenance Services (New Zealand) Ltd
10 Jan 2008, D King, AA 39/08, (8 pages)
PRACTICE AND PROCEDURE – Application by respondent to strike out Statement of Problem alleging unjustified dismissal – Res judicata - Respondent argued applicant attempting to re-litigate matters already determined by Authority and estopped from bringing claim – Also argued applicant should have raised issues during earlier proceedings and this action attempted to circumvent his inability to have previous claim reheard by Employment Court because of failure to pay fee – Respondent submitted claim abuse of process, vexatious and frivolous and should be struck out - Previous determination concerned unjustified disadvantage claim and related to respondent reclaiming company property while applicant on extended sick leave – Applicant dismissed when respondent believed he was working with competitor while on sick leave – Dismissal referred to during initial Authority investigation meeting – If issue sought to be raised related to a new cause of disadvantage then matter may have been struck out – However, dismissal claim new cause of action not permutation of disadvantage – Facts common to both causes of action but doctrine respondent sought to rely on limited to matters that arose within one cause of action – Application to strike out dismissed
Result: Application dismissed ; Costs reserved
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Callen v Marie Sanderson t/a Marie's Early Childhood Learning Centre
24 May 2007, K Raureti, AA 158/07, (8 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Identity of employer - Applicant employed by company, not director personally - Director remiss in not correctly stating identity of employer in employment agreement, but no evidence applicant misled or deceived - Not just and equitable for director to be personally liable - Applicant being trained in total operation of business because planned to take up position as licensee - At end of first week's employment, decided to resign - Spoke with other staff about decision and handed in written resignations from all staff along with her own - Dispute arose over amount of administrative work applicant to do during notice period - Applicant insisted on keeping administrative hours despite respondents attempts to remove those duties from her - Respondent denied dismissing applicant after heated exchange, instead claimed suspended her to conduct investigation into several allegations - At disciplinary meeting, applicant presented prepared statement and sought more information about some allegations - Respondent did not accept applicant's explanations or requests for more information - Summarily dismissed applicant - No full and fair investigation - Dismissal unjustified - Remedies - Respondent's request applicant spend more time teaching than learning administrative tasks reasonable given resignation and terms of employment agreement - Applicant deliberately defied director's authority - Contributory conduct 20 percent - ARREARS OF WAGES - Applicant claimed paid at wrong salary rate - Higher rate specifically negotiated for extra responsibilities associated with licensee responsibilities had yet to take up - Applicant paid at correct rate - Entitled to be paid in full for days respondent sent her away as part of disciplinary process, but not for other absences - PRACTICE AND PROCEDURE - Counterclaim - Respondent sought large sum as damages - Claim not particularised and lacked sufficient detail to enable thorough investigation - Separate investigation set down but respondent sought adjournment - Counterclaim adjourned sine die - Team leader
Result: Application granted ; Reimbursement of lost wages (Two weeks reduced by 20%) ; Compensation for humiliation etc ($1,000 reduced to $800) ; Arrears of wages (Quantum to be determined) ; Counterclaim adjourned sine die ; Costs reserved
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Eagle v Phil Anderson Carriers (1986) Ltd
22 May 2007, R A Monaghan, AA 155/07, (1 pages)
PRACTICE AND PROCEDURE - Applicant filed arrears claim - No appearance by either party - Neither party responsive to attempts by mediation service to arrange mediation in accordance with previous Authority direction - Non-attendance at investigation meeting meant Authority declined to investigate matter further - Application dismissed
Result: Application dismissed ; No order for costs
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Ellis v Transpacific Industries Group (NZ) Ltd
5 Jul 2007, R Arthur, AA 204/07, (6 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Respondent sought to have applicant's request for declaration on validity and enforceability of restraint of trade removed to Employment Court - Claimed matter raised important question of law relating to extent employer could legitimately protect proprietary interests with lengthy restraint of trade - Applicant agreed appropriate case to be heard by Court at first instance - Questions of law posed by respondent probably mixed questions of fact and law, but sufficiently strong factor to be influential in exercising general discretion to remove matter - Also question about whether circumstances and arrangements took matter across line of "pure" employee restraint cases to something of more commercial-employee hybrid - Strong possibility of parties securing fixture in relatively short time relevant - Parties agreed to removal and practical reality meant it would certainly go to Court on challenge - Did not automatically favour removal, but taken with other factors, supported overall conclusion removal warranted - Matter removed to Court
Result: Application granted ; Orders accordingly ; No order for costs
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Johns v Shell New Zealand Ltd
30 May 2007, P R Stapp, WA 88/07, (7 pages)
PRACTICE AND PROCEDURE - No appearance for applicant - Previously granted adjournment - Further adjournment declined - Requested another adjournment without committing to investigation dates - Alleged unable to leave Malaysia due to tax problems he associated with respondent's behaviour - Respondent opposed application - Employment relationship problem filed almost three years after personal grievance raised - Applicant had not complied with directions of Authority to attend mediation and provide further evidence - Applicant also raised new claims and sought interim orders - If genuinely wanted to pursue new claims should have followed proper process, Authority did not intend to deal with them - Authority left with impression applicant acting to deliberately delay matters - Nature of alleged problem required applicant to personally appear - Authority concerned about applicant's availability and concluded he had no intention of being available for investigation meeting speedily and promptly - Provided document in Malaysian, if wanted to rely on document should have arranged translation - Reasonable to expect applicant to have raised alternatives if difficult for witnesses to attend - Authority not satisfied applicant prevented form leaving Malaysia or arranging representation to be present at investigation meeting - Conditions of earlier adjournment not met and second adjournment not requested in timely manner - Respondent entitled to certainty and closure - Request for adjournment declined - Applicant had no good cause for failure to attend or be represented - Authority proceeded to determine substantive matter - UNJUSTIFIED DISMISSAL - Redundancy - Applicant unable to prove ulterior motive for dismissal or establish grounds for remedies - Genuine redundancy - Dismissal justified
Result: Application dismissed ; Orders accordingly ; Costs reserved
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McTaggart v N & M Witehira Ltd
19 Dec 2007, D King, AA 297A/07, (2 pages)
PRACTICE AND PROCEDURE - Quantum of remedies - Calculation of remedies reserved to enable applicant to provided medical information - While clear applicant had been seriously ill, extent to which illness precipitated by work related factors unclear - Lost wages limited to statutory three month period - Applicant also entitled to compensation - Unable to commence penalty action as more than 12 months had passed since cause of action arose
Result: Quantum specified ; Reimbursement of lost wages ($9,107.50)(3 months) ; Compensation for humiliation etc ($3,000) ; Disbursements ($70)(Filing fee)
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Ringrose v Brazin Ltd and Bras n Things New Zealand Ltd
5 Feb 2008, Y S Oldfield, AA 31/08, (29 pages)
BREACH OF CONTRACT – UNJUSTIFIED DISADVANTAGE – Applicant claimed health harmed by workplace stress and respondent failed to provide safe system of work – On doctor’s advice took two weeks leave - Applicant required to start new operation from scratch with inexperienced staff – Job too much for one person – Excessive workload caused applicant’s health problems – However, risk not foreseeable – Claim for wages lost while on leave dismissed – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed when returned to work, workload remained excessive and subjected to unreasonable and bullying treatment by managers – Applicant given strict instructions to improve stores – Conflict with manager led to “counselling” about behaviour and investigation into alleged serious misconduct – Applicant resigned, claimed lost all confidence in manager and felt overwhelmed – Applicant clearly suffered harm – Harm and resignation direct result of pressure applicant faced upon return to work – Counselling sessions unfair – While more likely than not applicant’s tone “unprofessional”, in context manager should have seen reaction as sign of distress – To describe actions as serious misconduct out of proportion with gravity of error – Extent of demands broke applicant’s health while unreasonable nature of demands destroyed her trust and confidence in managers – Ill health and resignation foreseeable and direct consequences of treatment she received from managers – Rather than attempt to prevent further harm, respondent imposed additional and unreasonable demands – Serious breach of duty to provide safe system of work – Remedies – Very distressing experience for applicant – Diagnosed with reactive depression and unable to work for several months - $20,000 compensation appropriate – PRACTICE AND PROCEDURE - Dispute and counterclaim relating to applicant’s expenses reserved as neither party provided enough evidence for Authority to make determination
Result: Application dismissed (breach of contract, unjustified disadvantage) ; Application granted (unjustified dismissal) ; Reimbursement of lost wages (4 weeks) ;Wages in lieu of notice (2 weeks) ; Application reserved (Dispute and counterclaim) ; Costs reserved
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Tobin & Anor v Stayinfront Inc. & Ors
1 Aug 2007, R A Monaghan, AA 227/07, (4 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Authority previously concluded claims covered by final and binding settlements - Employment Court, and Court of Appeal, restricted challenge to this preliminary question - Applicants subsequently sought removal of matter to Employment Court - Primary focus of argument was that merits of grievances overlapped with issue of whether final and binding settlements reached - However, applicants had not raised personal grievances for two years - Respondent argued no matter involving applicants currently before Authority capable of being removed to Court - Applicants argued express or implied waiver by respondent of any reliance on s114 Employment Relations Act 2000 - Alternatively argued procedural estoppel prevented them raising point now - Need to apply for leave to raise grievance pointed out to applicants' previous advocate - No waiver or estoppel regarding requirement that leave to raise grievances be sought and granted - Leave not sought or granted - No grievances properly before Authority and nothing to remove to Court - Also, no application for leave filed in Court - Could not be said Court had before it proceedings between same parties as no grievance properly before any institution - Court in Abernethy v Dynea New Zealand Limited (cited below) expressly distinguished present case - Application for removal declined
Result: Application dismissed ; Costs reserved
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von Tunzelman v Taylor & Anor
9 Jul 2007, L Robinson, AA 206/07, (7 pages)
PRACTICE AND PROCEDURE – Identity of employer – First respondent director of second respondent – Claimed only second respondent had legal relationship with applicant – Applicant previously employed by first respondent – Had no knowledge of second respondent, but accepted worked for publication – Applicant entered into and concluded negotiations with first applicant – First respondent never disclosed acting as agent – No written agreement – Doctrine of undisclosed principal – Applicant entitled to proceed against first respondent – JURISDICTION – Whether employee or independent contractor – Applicant claimed paid weekly retainer and commission – Respondent contended applicant not paid retainer but “advance” commission – Applicant’s evidence preferred – Applicant subject to significant control and integral part of operation – Applicant an employee – UNJUSTIFIED DISMISSAL – Applicant drinking with first respondent after work – Alleged told would need to find a new job and would not be paid commission – Applicant's attempts to contact respondent to clarify situation unsuccessful – Applicant’s evidence accepted – Dismissal unjustified – Applicant did not seek remedies - ARREARS – Applicant claimed owed outstanding commission – Respondent submitted not owed anything as did not earn any – Also said not paid because did not submit invoices – Statements inconsistent and Authority rejected contention applicant required to submit invoices – Applicant entitled to commission of greater of 10 percent of total sales, or $40,000 – Authority unable to determine arrears without sales figures – Respondents ordered to supply information
Result: Application granted ; Arrears of wages (Quantum to be determined) ; Orders accordingly ; No order for costs
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von Tunzelman v Taylor & Anor
13 AUg 2007, L Robinson, AA 206A/07, (2 pages)
PRACTICE AND PROCEDURE - Quantum of remedies - Authority had ordered respondents to supply further information to allow it to calculate quantum of commission owed to applicant - Respondents failed to comply with order - Failure ought not operate to their advantage - Respondents liable to applicant for commission of $40,000 - Applicant elected to proceed against first respondent personally - First respondent ordered to pay applicant $40,000 commission
Result: Quantum specified ; Arrears of wages ($40,000) ; Orders accordingly ; No order for costs
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