Previous Section | Table of Contents | Next Section
Apaapa v Whitehouse Entertainment Ltd
15 Aug 2006, D King, AA 218A/06, (2 pages)
COSTS - Successful personal grievance and unsuccessful counterclaim - Length of investigation meeting not specified - Applicant sought contribution of $4,000 to total costs of $8,640 plus disbursements of $323.42 - Included cost of mediation which could not be taken into account - Applicant argued award at higher of scale be considered given respondent failed to agree to mediation at an early stage - Put applicant at greater expense - Applicant entitled to reasonable contribution to costs
Result: Costs in favour of applicant ($3,000)
Boost v Carbine Milk Ltd
10 Oct 2006, YS Oldfield, AA 93A/06, (1 pages)
COSTS - Unsuccessful arrears claim and successful counterclaim - Investigation meeting less than one day - Respondent sought contribution of $2,000 to total costs of $2,250 - No submission from applicant - Issues narrow and little preparation required - Appropriate contribution $1,000
Result: Costs in favour of respondent ($1,000)
Busby v Talent Base Ltd
17 Aug 2006, R A Monaghan, AA 247A/06, (3 pages)
PRACTICE AND PROCEDURE - Previous Authority determination made amended orders for payment of arrears with parties to determine quantum - Ongoing failure by respondent to address issue - Applicant asked Authority to determine quantum - Applicant's calculations accepted - COSTS - Costs order relating to first investigation meeting to stand - Second investigation meeting took less than full day - Overall outcome mixed, although most of success applicant's - Entitled to $1,500 as further contribution to costs
Result: Orders accordingly ; Costs in favour of applicant ($1,500)
Collins v Kaans Catering Supplies Ltd
22 Mar 2007, P Cheyne, CA 26/07, (2 pages)
COSTS - Unsuccessful personal grievance - 1/2 day investigation meeting - No grounds for indemnity costs or for costs to lie where they fall - Investigation meeting of short duration as few points of disagreement - In ordinary course Authority would order $1,500 as contribution to respondent's costs - However significant delays by applicant prior to proceedings being lodged - Might have seemed to respondent claim abandoned and caused additional costs when counsel had to refresh themselves about file - Calderbank offer made prior to investigation meeting - Greater portion of costs incurred after offer to be met by applicant - Applicant had no significant financial resources apart from current employment - Moderated increase in costs - Applicant to pay $2,000 as contribution to costs - Authority noted helpful for party claiming costs to provide invoice or memorandum
Result: Costs in favour of respondent ($2,000)
Corbett v Bendon Ltd
10 Jan 2007, A Dumbleton, AA 3/07, (4 pages)
COSTS - Unsuccessful personal grievance - Length of investigation meeting little over one day - Respondent sought costs of $11,491, being full costs incurred after Calderbank offer rejected - Applicant submitted costs should lie where they fall - Alternatively, argued costs should be limited to $2,000 to reflect adverse financial position - Not appropriate for costs to lie where they fall - Reasonable settlement offer rejected and applicant's many complaints were without merit - No feature to support full costs - Authority took into account applicant's engagement of solicitor - Authority could not have much sympathy for applicant's claim now impecunious when elected to spend money on legal representation rather than cut costs by having Authority investigate employment relationship problem - Parties on tight budgets need to consider reasonable settlement offers with greater care - Respondent's offer unreasonably rejected by party who may have put principle too far ahead of practical and economic reality - Applicant sought stay of costs award until challenge to Employment Court determined - Not appropriate to issue stay - Respondent successful and entitled to have last matter dealt with to close investigation - Stay might operate for undesirably long period - Authority also influenced by fact respondent's legal advisers likely to weigh up need to exercise discretion when considering enforcement of costs order - Nothing to prevent another application for stay being made if circumstances changed
Result: Costs in favour of respondent ($3,550)
Craib v Windsor Doors Ltd
12 Mar 2007, V Campbell, AA 66/07, (2 pages)
COSTS - Successful personal grievance - Half day investigation meeting - Applicant reasonably incurred total costs of $4,950 and sought contribution to costs - Nothing in case to derogate from principle that costs follow the event - Respondent ordered to pay $1,500 as reasonable contribution to costs
Result: Costs in favour of applicant ($1,500)
Dickson v New Zealand Grazing Company Ltd
9 Aug 2006, M Urlich, AA 120A/06, (2 pages)
COSTS - Unsuccessful personal grievance, unsuccessful counterclaim - 2 1/2 days investigation meeting - Respondent sought contribution of $6,250 to total costs of $19,840 plus $513 disbursements - Respondent argued entitled to costs because applicant's claim dismissed, two Calderbank offers made, and their counterclaim only took a short time - Applicant submitted costs should lie where they fall - Argued neither party successful in claims, counterclaim had little prospect of success, cross examination of applicant took 1 day of hearing time and adjournment of proposed third day needed to consider witness statement - Substantial amount of costs unnecessary given outcome of applicant's claim - Third of investigation time dealt with counterclaim which applicant should not have to contribute to
Result: Costs in favour of respondent ($2,500) ; Disbursements ($100)
Francis Weston t/a Sportscar World v Fraser
15 Feb 2007, P R Stapp, WA 28/07, (2 pages)
COSTS - Unsuccessful application to reopen Authority's original investigation - Application decided on the papers - Respondent sought actual costs of $2,316 - Applicant suggested costs should lie where they fall - Alternatively, argued should not exceed it's contribution - Applications chance of success minimal to extent should not have been pursued - Costs to follow event as respondent incurred unnecessary costs defending application - Applicant also argued challenge made to Employment Court and if respondent won would be adequately compensated for the cost of reopening Authority investigation from earlier remedies required to be put into court - Authority rejected submission respondent 's remedies in earlier proceedings should absorb costs of current application - Appropriate contribution fixed at two thirds of claim
Result: Costs in favour of applicant ($1544.10) ; Disbursements ($58.80)
Gibbons v Jaycey's Laundry
29 Aug 2006, J Scott, AA 276/06, (2 pages)
COMPLIANCE ORDER - Applicant sought compliance with settlement agreement - At investigation meeting respondent paid outstanding sum to applicant - Substantive matter fully resolved - COSTS - Applicant sought $262 for costs incurred bringing matter to Authority - Costs reasonable and would not have been necessary if respondent abided by original agreement
Result: Orders accordingly ; Disbursements ($216.81)(Process server and application fee)
Gittoes v Gorrie Fuel (SI) Ltd
7 Aug 2006, P Cheyne, CA 58A/06, (2 pages)
COSTS - Successful personal grievance and arrears claim - One day investigation meeting - Respondent argued costs should be dealt with by Employment Court as challenge to Authority's determination lodged - Usual approach was to determine costs irrespective of challenge - Applicant successful although outcome less than claimed - No different from outcome for most successful applicants - No reason costs should not follow event - Applicant legally aided - Arrears claim should have been paid to applicant without him having to incur legal costs - If Authority could have identified costs necessary for arrears claim, would have ordered them paid in full - Proper approach was reasonable contribution to costs - Authority rejected respondent's claim applicant prolonged proceedings - Investigation prolonged by respondent's failure to comply with directions about disclosure - Contribution to costs awarded
Result: Costs in favour of applicant ($2,000) ; Disbursements ($70)(Filing fee)
Harrison v Newmarket Panelbeaters Ltd
14 Aug 2006, YS Oldfield, AA 186A/06, (1 pages)
COSTS - Partially successful personal grievance - Length of investigation not specified - Applicant sought full costs of $1,305 - Applicant argued respondent made no attempt to communicate to defuse matter - Authority received no costs submission from respondent - Uncomplicated matter which required little preparation and brief investigation meeting
Result: Costs in favour of applicant ($300) ; Disbursements ($11.25)
Ki Auro Pepe v Transportation Auckland Corporation Ltd
3 Aug 2006, R A Monaghan, AA 202A/06, (2 pages)
COSTS - Unsuccessful personal grievance - One day investigation meeting - Respondent sought costs of $2,444 plus disbursements - Matter handled internally by respondent - Costs quantified by reference to hours staff worked on matter - Appropriate to award costs for time advocate spent on matter - Also allowed preparation work of human resources staff - Two employees were witnesses - For costs purposes that is how their attendance should be addressed - Witnesses' expenses payable at $50 per witness - Applicant represented by union at investigation - Nothing filed on applicant's behalf regarding costs - Union not liable for costs as not party to matter - Would have been helpful, and consistent with role as advocate, for union to address costs - Respondent awarded modest contribution to costs
Result: Costs in favour of respondent ($1,120) ; Disbursements ($164)(Parking and photocopying costs), ($100)(Witness expenses)
Kingsford v Bodyworks Panel & Paint Ltd
9 Mar 2007, GJ Wood, WA 26A/07, (2 pages)
COSTS - Partially successful personal grievance - Length of investigation meeting not specified - Both parties sought costs - While large amount of evidence given for unsuccessful unsafe workplace claim, was useful in assessing successful unjustified dismissal claim - In ordinary course of events successful party in a claim involving same degree of investigation could expect award of $3,000 - As applicant unsuccessful in major claim and awards reduced by two thirds contribution, similar deduction made to costs
Result: Costs in favour of applicant ($1,000)
Lee v Abigroup Asset Services New Zealand Ltd
15 Aug 2006, D King, AA 51A/06, (2 pages)
COSTS - Unsuccessful personal grievance - Length of investigation meeting not specified - Respondent had total costs of $23,996 plus witness fees of $400 - Applicant submitted only just returned to full time work and not in position to make any contribution to costs so costs should lie where they fall - Authority found applicant could meet costs after reviewing financial statements - Costs incurred by respondent very high - No reason to depart from general level of award - Witnesses not summonsed - No reason to make award for costs incurred in appearance at Authority - Applicant ordered to pay $1,500
Result: Costs in favour of respondent ($1,500)
Legge v Nordic Power Desiccants Ltd
1 Mar 2007, J Crichton, CA 21/07, (2 pages)
COSTS - Successful personal grievance - Investigation meeting of less than one day - Applicant sought contribution of $2,500 to total costs of $3,552 - Respondent argued contribution to costs should be less due to limited preparation time required by urgent nature of proceedings and limited hearing time - Authority agreed costs kept to minimum as matter dealt with expeditiously - Applicant's costs fair and reasonable - Respondent to pay contribution of $2,000 to applicant's costs
Result: Costs in favour of applicant ($2,000)
McClelland v The Supply Chain Ltd
12 Sep 2006, R Arthur, CA 138/06, (7 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Dismissed after respondent investigated applicant's complaint co-worker ("B") threatened him and kicked car - Respondent found applicant breached company rules by creating situation where confrontation inevitable - Concluded provoked B and accepted challenge to fight - Conclusion not one fair and reasonable employer could reach - Relied on causative steps that could not be not properly established or assumed - Respondent properly placed aside some comments allegedly made by applicant, but Authority not satisfied weight placed on comment applicant "looking forward" to fight what fair and reasonable employer would have done - Applicant claimed not really after a fight and comment "just talk" - Fair and reasonable employer would consider explanation plausible and give it more weight - Evidence employer could reasonably rely upon not sufficient to support finding actions outside tolerated range of 'workplace banter' - Misconduct finding not justified - Respondent acknowledged but for existing warnings would not have dismissed for level of misconduct that occurred - Fair and reasonable employer would not dismissed - Dismissal unjustified - Remedies - In assessing lost wages Authority made allowance for prospect applicant would have been dismissed soon for poor performance - Contributory conduct - Applicant responsible for initiating banter that led to altercation - Warnings for poor performance also factor - Contributory conduct 80 percent - COSTS - One day investigation meeting - Costs at lower end of usual daily tariff warranted - Length of service not specified - Operator
Result: Application granted ; Reimbursement of lost wages (Five weeks reduced to one) ; Compensation for humiliation etc ($3,000 reduced to $600) ; Costs in favour of applicant ($1,500) ; Disbursements ($70)(Filing fee)
Metcalf (Labour Inspector) v Lal t/a Jag Lal Lawyers
10 Oct 2006, R Monaghan, AA 316/06, (1 pages)
ARREARS OF HOLIDAY PAY - Applicant Labour Inspector sought arrears on behalf of P - Parties agreed sum owed - Respondent ordered to pay arrears due and owing - Interest 7.7 percent - PENALTY - Penalty sought for failure to pay holiday pay - Respondent indicated impecunious - Previous attempt made to resolve matter but parties unable to agree amount owed - Penalty not warranted in circumstances - COSTS - Applicant entitled to be reimbursed filing fee
Result: Application granted (Arrears of holiday pay) ; Arrears of holiday pay ($918.49) ; Interest (7.7%) ; Disbursements in favour of applicant ($70)(Filing fee) ; Application dismissed (Penalty)
Multiserve Education Trust Ltd v Ross, McGee
23 Aug 2006, YS Oldfield, AA 271/06, (7 pages)
PRACTICE AND PROCEDURE - Whether further orders should be made to preserve evidence - Applicant claimed 3rd respondent breached direction of Authority by failing to deliver up specified classes of documents - Sought alternative orders that 3rd respondent and its CEO produce all documents relating to proceeding and that they deliver to Authority their "computer systems" - Authority previously declined request for full disclosure prior to mediation - Applicant explained objective was to complete process begun previously - Although CES had delivered up computer hard drives, likely further relevant evidence in its possession - Authority not satisfied real risk of deliberate removal of relevant material - However risk of accidental loss of information meant need to secure further evidence before parties embarked on mediation - Authority had no power to order forensic expert onto CES premises or clone material on its computers - Available process was to require evidence to be delivered up for cloning for Authority to retain clone - CES argued would be hugely disruptive - Independent expert available to search and clone servers onsite - With CES consent, expert to attend premises outside normal working hours for purposes of preserving relevant information on CES servers - Time and keywords for search to be subject to further teleconference - CES reminded under responsibility to ensure no information destroyed - To produce hard copies of relevant documents on hard drives already cloned - COSTS - Expense of experts services to be borne by applicant on cost shifting basis - Arrangement to continue subject to final determination at mediation
Result: Orders accordingly
O'Donnell v Christian Healthcare Trust
7 Feb 2007, Y S Oldfield, AA 25/07, (1 pages)
COSTS - Successful personal grievance - Half day investigation meeting - Applicant sought contribution of $2,250 to total costs of $2,970 plus disbursements $85 - Respondent argued costs should lie where they fall as applicant was awarded 13 percent of original remedy sought - Applicant entitled to contribution to costs but actual costs incurred not considered reasonable - Issue confirmed and level of preparation required modest - Appropriate respondent make contribution to costs of $500 and reimburse applicant for other expenses incurred - Authority noted addition of GST to disbursements appeared to be in error
Result: Costs in favour of applicant ($500) ; Disbursements ($85.45)
O'Kelly-Barnes v Tillermans (2003) Ltd
19 Mar 2007, H Doyle, CA 2A/07, (2 pages)
COSTS - Successful personal grievance - Less than one day investigation meeting - Applicant sought contribution of $4,000 to total costs of $6,318 plus $88 disbursements - Respondent argued costs should lie where they fall - Authority took into account applicant's limited success and Calderbank offer made by respondent - Applicant submitted respondent's failure to provide employment agreement should also be considered but purpose of costs not to punish unsuccessful party - Applicant entitled to fair and reasonable contribution of $1,500
Result: Costs in favour of applicant ($1,500); Disbursements ($88.41)
Osborne v J A Ramsay Transport Ltd
1 Mar 2007, G J Wood, WA 33/07, (2 pages)
COSTS - Unsuccessful personal grievance - Length of investigation meeting not specified - Applicant legally aided - Respondent successful in defending all of applicant's claim with one minor exception - Authority considered if not for fact applicant legally aided, applicant would have required him to pay $2,400 costs - However only required to pay contribution to costs of $50
Result: Costs in favour of respondent ($50)
Palmer v RNJ's Ltd
19 Feb 2007, V Campbell, AA 41/07, (2 pages)
COSTS - Successful personal grievance - Length of investigation meeting not specified - Applicant sought contribution of $344 to total costs of $619 plus disbursements of $70 - Respondent submitted insolvent but provided no evidence to support claim and company continued to trade - Nothing in case to derogate from principle costs follow the event - Respondent ordered to pay applicant contribution to costs
Result: Costs in favour of applicant ($200) ; Disbursements ($70)
Pulp and Paper Industry Council of the Manufacturing and Workers Union & Anor v Norske Skog Tasman Ltd
21 Mar 2007, V Campbell, AA 84/07, (2 pages)
COSTS - Unsuccessful application for breach of contract and Employment Relations Act 2000 - Length of investigation meeting not specified - Costs sought from first applicant only - Respondent submitted issue largely dispute between first applicant and respondent about consultation and restructuring policy - Respondent sought contribution of $4,000 plus disbursements of $248 - Authority unable to assess whether costs incurred reasonable as respondent failed to provide total costs amount or how costs incurred - Given subject and duration of investigation meeting, applicant to pay $2,000 as reasonable contribution
Result: Costs in favour of respondent ($2,000) ; Disbursements ($248.51)
Rota v Sea Products Ltd
16 Aug 2006, H Doyle, CA 74A/06, (2 pages)
COSTS - Unsuccessful personal grievance - One day investigation meeting - Respondent argued costs should be left as Authority determination challenged - Respondent's total costs were $5,400 and sought contribution of $3,000 - Respondent submitted two Calderbank offers made before investigation meeting - Authority had regard to first offer only - Applicant argued did nothing to unreasonably add to costs and only modest award called for - Nothing in case that would cause departure from usual approach to costs - Reasonable contribution to costs of $2,000 awarded to respondent
Result: Costs in favour of respondent ($2,000)
Spink v APN New Zealand Ltd
20 Feb 2007, D Asher, WA 30/07, (3 pages)
COSTS - Unsuccessful personal grievance - One day investigation meeting - Respondent sought contribution of $5,000 to total costs of $15,000 plus disbursements - Respondent argued put to considerable expense by way applicant pursued proceedings - Second grievance raised one month prior to hearing of original grievance - Applicant rejected respondent's claim unable to reach agreement as to costs - Claimed no communication on costs - Applicant submitted successful party had duty to pursue matter promptly and diligently and failure to do so argued strongly, in equity and good conscience, for costs to lie where they fall - In alternative, argued costs should be at lower end of scale as both parties achieved measure of success - While Authority noted conflict over whether parties communicated on costs issue, satisfied appropriate to determine costs - No reason to depart from principle costs should follow event - Manner applicant pursued proceedings did not put respondent to unnecessary or additional costs - Applicant not disadvantaged by time respondent took to seek costs - Relied on Wolfenden v NZ Film & Television School Ltd (cited below) to find applicant should not bear costs of out of town counsel - But for respondent's concession it should restore monies deducted from wages, it would have received more significant costs award - Applicant ordered to pay fair and reasonable contribution to costs as only modest investigation required for straightforward matter
Result: Costs in favour of respondent ($1,000)
Tones v 3D1 Ltd
7 Feb 2007, Y S Oldfield, AA 26/07, (1 pages)
COSTS - Authority concluded lacked jurisdiction as applicant not employee - Investigation meeting less than one day - Respondent sought 80 percent of total costs as contribution plus travel disbursements - Argued applicant's claim had no merit and delayed disclosure of information significantly increased preparation time of case - Respondent's total legal costs were $8,190 plus $544 disbursements - Applicant argued investigation less than one day and was cooperative - Also argued no unusual circumstances to justify departure from normal approach to costs - Respondent entitled to contribution to costs of $2,000 plus disbursements
Result: Costs in favour of respondent ($2,000) ; Disbursements ($544.40)
Warsame v CCNP Ltd
13 Sep 2006, M Urlich, AA 291/06, (2 pages)
COMPLIANCE ORDER - Applicant sought compliance with mediated settlement - No appearance for respondent - Respondent company had changed name and liquidator appointed - Liquidator consented to continuation of proceedings - Respondent had not made payment agreed under settlement - Compliance with record of settlement ordered - Applicant entitled to interest - COSTS - Length of investigation meeting not specified - Applicant sought contribution to total costs of $1,920 plus $70 disbursements - Appropriate to award $500 costs
Result: Compliance ordered ; Interest (9%) ; Costs in favour of applicant ($500)
Williams v The Supply Chain Ltd
15 Sep 2006, H Doyle, CA 140/06, (7 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Covert video camera filmed applicant accepting kneepad from another employee - Applicant aware actions breached company rules but did not accept intended to steal property - Claimed discarded kneepad at workplace but respondent unable to recover it - Investigation full, fair, and met requirements in collective employment agreement - Fair and reasonable employer would consider conduct amounted to unauthorised possession of company property and serious misconduct - Respondent considered applicant's long service, but it also counted against him as considered he knew rules, was looked up to by peers and should have stopped incident rather than contributed to it - Open to fair and reasonable employer to consider length of service in this way - Respondent also considered need to consistently apply rules and did not want to create precedent that unauthorised possession of property would result only in warning - Present case distinguished from Teao v Stormonts Bakeries Co Ltd (cited below) - Dismissal justified - COSTS - Length of investigation meeting less than one day - Appropriate to award $1,200 costs to respondent - Length of service 17 years - Warehouse operator
Result: Application dismissed ; Costs in favour of respondent ($1,200)
Previous Section | Table of Contents | Next Section
