| |
Previous Section | Table of Contents | Next Section
Nicholas v The Owners of Waitangi Terrace Station
10 Feb 2009, A Dumbleton, AA 40/09, (8 pages)
DISPUTE - Applicant raised personal grievance – Respondent sought to invoke dispute resolution procedure provision in employment agreement (“EA”) – Applicant applied to Authority for injunction to restrain respondent from taking steps under contractual dispute procedure and sought direction to mediation – Determination related only to dispute procedure – Respondent argued once contractual dispute procedure invoked by either party, steps to be taken were mandatory and would lead to determination of grievance by dispute committee convened under procedure – Employment Contracts Act 1991 in force when EA formed – Respondent argued dispute procedure applied notwithstanding s102 ERA – Authority stated pursuit of any grievance under ERA allowed employee access to mediation and, if grievance unresolved, determination by Authority – Applicant argued dispute procedure did not amount to binding submission to arbitration under s155 ERA – In alternative, applicant argued s155(3) ERA permitted applicant to use mediation or apply to Authority for investigation under Part IV ERA – Applicant also submitted under s238 ERA provisions in ERA to prevail over any contrary provisions in any contract – Also submitted provisions of dispute procedure not sufficiently strong and clear to oust jurisdiction of Authority to resolve grievance or direct parties to mediation – Authority noted respondent’s insistence on dispute procedure in EA difficult to understand given inexpensive, speedy and effective processes available under ERA – Authority found under s159 ERA Authority had duty to consider mediation “where any matter” came before it – Authority also found under s102 ERA employee permitted to pursue any personal grievance under ERA and Authority given exclusive jurisdiction under s161 ERA to determine grievance – Due to s102, s159, s161, s238 ERA and applicant’s opposition, Authority’s discretion to order compliance with contractual dispute procedure likely to be declined – Authority also found application of transitional provisions of ss242 ERA and 245 ERA put resolution of dispute beyond doubt – Authority concluded dispute to be resolved in favour of applicant – Found applicant not bound by dispute procedure in EA – Authority suggested parties to concentrate on real issue of grievance raised regarding inducement to retire – No direction to mediation or decision on costs
Result: Questions answered in favour of applicant ; No costs awarded
Previous Section | Table of Contents | Next Section
|
 |
