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Blaker v B & D Doors (NZ) Ltd
16 Feb 2007, Travis J, AC 8/07, (1 pages)
PRACTICE AND PROCEDURE – De novo challenge to determination of Employment Relations Authority (see: AA 40/06) – Application to strike out challenge for want of prosecution – Defendant alleged plaintiff failed to provide list of documents and raised earlier problems – Documents filed morning of strike out hearing – HELD – Earlier events had effectively been waived by defendant earlier in accepting fixture should proceed and indicating that the defendant’s intention at that stage was not to seek to strike out – In absence of any evidence of prejudice application to strike out could not be sustained – application dismissed
Result: Application dismissed ; Costs reserved
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)
Carrothers v Jasons Travel Media Ltd
21 Mar 2007, R Arthur, AA 30A/07, (9 pages)
PRACTICE AND PROCEDURE – Whether Authority could recall determination for purpose of changing content – Whether Authority could issue non-publication order in respect of content after determination issued – Parties sought permanent non-publication order of some content in substantive determination – Required changes to determination as issued - While s174(b) Employment Relations Act 2000 ("ERA") stated Authority need not set out all or any evidence heard, Authority did not take this to mean should not or could not do so, particularly if part of process of setting out required findings of fact and conclusions – No application for non-publication orders made during investigation process – Application of this type was “matter” within scope of s221 ERA – Arguable error or defect under s221(b) ERA – Doubtful Authority could issue non-publication order once finalised determination issued to parties – “Recall” was means open to Authority to address substantial merits of application if for “very special reason” justice required it – Whether references to employees, products and client were, or likely to be, so commercially embarrassing that amounted to special circumstances requiring recall – Privacy Act 1993 principles did not apply - Authority not persuaded real or significant commercial embarrassment likely - Nothing to suggest significant media interest likely – Doubtful detail would meet standard for non-publication order during or before investigation meeting - Authority could not agree with submission, on utility-based approach, that determination could be recalled and names removed because would be no less of a determination – Statutory framework provided opportunities to resolve matters confidentially – Where parties chose investigation they put beyond their control extent of information revealed about parties, witnesses and business – Determination not a draft issued for consideration and blue pencilling of parties – Once issued, determination “must stand for better or worse, subject of course, to appeal” – However, left open prospect may be rare case where for special reasons justice requires otherwise – Recall of determination to make changes sought not required by any special reason to do justice in circumstances of present case - Application declined – Interim non-publication order presently in place extended 29 days to allow for prospect of challenge
Result: Application dismissed ; Orders accordingly ; No order for costs
Coy v The Commissioner of Police
19 Apr 2007, H Doyle, CA 46/07, (4 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court – Applicant sought removal of personal grievance to Employment Court under s178(2)(d) Employment Relations Act 2000 ("ERA") – Another personal grievance lodged at same time by colleague - Colleague's application to have claim removed to Court dealt with in separate determination (CA 45/07) - Discretion under s178(2)(d) ERA wide and Authority had regard to object section in Part 10 ERA – Not enough that parties wanted matter removed – Cross examination or witness numbers not factors sufficient on their own to favour removal – Whether matter dealt with in Authority or Court it would occupy considerable investigation time and likely involve interlocutory matters – Factors not sufficient on their own to favour removal – Likelihood of challenge not factor that favoured removal – Authority did not accept facts relied on by applicant were applicable to cases Authority determined on daily basis – Most cases did not have such historical issues or issues relating to disclosure – Applicant spent number of years trying to obtain disclosure and claimed still incomplete – Possibility information disclosed as result of discovery may bear on interpretation and application of Police general instructions – Court’s more prescriptive procedures and powers relating to discovery favoured removal – Applicant made serious allegations and public interest in how treated favoured removal – Circumstances would not, on their own, be sufficient for Authority to exercise discretion to remove matter to Court – However, considered together discretion should be exercised in favour of removing matter – Removal ordered
Result: Application granted ; Matter removed to Court ; Costs reserved
Fifield v Rotorua District Council & Anor
2 Mar 2007, Hammond, Chambers, Arnold JJ, CA 167/06, (1 pages)
COURT OF APPEAL – Practice and Procedure - Unjustified dismissal – Application for special leave to appeal Labour Court decision – Applicant in person sought “review” of decision and “order reinstating” him – Labour Court in 1989 decision directed applicant to be reinstated – Uncertain what happened thereafter – Applicant was either not properly reinstated or was dismissed shortly thereafter – Applicant did not take available enforcement procedures but instead sought rehearing which was refused – HELD – Application entirely misconceived – There was nothing to appeal as applicant got the relief sought in Labour Court – Court of Appeal had no jurisdiction of the character sought by applicant – Application hopelessly out of time – Section 312 Labour Relations Act 1987 provided appeals to be filed within 28 days – Was difficult to conceive any circumstances in which delay of over a decade and a half could be entertained – Application dismissed – Applicant not entirely able to comprehend course on which he had embarked – No order for costs as compassionate response by Court
Result: Application dismissed ; No order for costs
Finnigan v Hanover Group Ltd
6 Sep 2006, L Robinson, AA 236A/06, (3 pages)
PRACTICE AND PROCEDURE - Quantum of remedies - Authority had reserved leave on calculation of holiday pay if parties could not agree on sum - Parties unable to resolve issue - Respondent submitted sums owing under Deed of Settlement not subject to holiday pay - Argued were exceptional payments excluded from definition of "average weekly earnings" - Also argued not payable under employment agreement so excluded from definition of "gross earnings", and as payments compensatory did not fall within purposes of Holidays Act 2003 - Bonus regarded as gross earnings and payable under employment agreement - Holiday pay payable on bonus - Other sums not remunerative elements or gross earnings as payment for service - Payments consideration for collateral contract which secured agreement for forbearance to sue in relation to contended personal grievance together with amicable departure - Payments not subject to holiday pay
Result: Quantum specified ; Holiday pay owing ($6,250) ; No order for costs
Hurlimann v Auckland College of Natural Medicine Ltd
18 Sep 2006, D King, AA 137A/06, (3 pages)
PRACTICE AND PROCEDURE - Quantum of remedies - Authority had reserved leave on calculation of lost wages if parties could not agree on sum - Parties unable to resolve issue - Applicant could not claim wages for lectures after date of justified dismissal, or for classes had not prepared for - Applicant to be paid for classes taught but not invoiced - Authority calculated lost wages - Applicant would have been paid for missing hours had he invoiced respondent as instructed - Parties agreed applicant entitled to payment for public holiday - Applicant owed holiday pay on amounts owing and some wages already paid - Entitled to interest on some amounts owing - Not fair and reasonable to award interest on monies that remained unpaid only because applicant failed to submit invoices - Interest 9.5 percent on applicable amounts
Result: Reimbursement of lost wages ($931.50) ; Arrears of wages ($460) ; Arrears of holiday pay ($69)(Public holiday) ; (6% of stated amounts) ; Interest (9.5%) ; Orders accordingly ; Costs reserved
Maginn v European Profile Ltd
14 Sep 2006, D Asher, WA 125/06, (2 pages)
PRACTICE AND PROCEDURE - During investigation meeting parties agreed to resume mediation - Settlement reached - Matter withdrawn
Result: Orders accordingly ; No order for costs
Monaco Village Management Ltd v Benson
1 Mar 2007, Shaw J, CC 4/07, (1 pages)
PRACTICE AND PROCEDURE – De novo challenge and cross challenge to determination of Employment Relations Authority (see: CA 158/05) – Application by defendant for challenge to be dismissed for want of prosecution and costs fixed – Plaintiff had taken no steps since filing statement of claim and was not able to be contacted by the Court – Plaintiff had ceased trading and its director and principal shareholder no longer in New Zealand and its solicitors had withdrawn – HELD – Plaintiff’s challenge dismissed – Defendant’s cross challenge deemed withdrawn – Application granted – COSTS – Plaintiff to pay $4,000 costs for two day Authority investigation – No order for costs in Court other than disbursements
Result: Application granted (challenge dismissed) ; Costs in favour of defendant ($4,000)(Authority) ; (Disbursements)(Court)
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
NZ Tramways & Public Passenger Transport Authorities Employees IUOW (Wellington Branch) v Cityline (NZ) Ltd t/a Cityline Hutt Valley
16 Apr 2007, D Asher, WA 55/07, (6 pages)
PRACTICE AND PROCEDURE – Application for partial strike out – Applicant alleged respondents entered into purported multi-employer, multi union collective employment agreement (“MEMUCA”) in breach of Employment Relations Act 2000 ("ERA") – Sought various declarations including finding MEMUCA void ab initio and not valid as collective agreement – Respondent claimed applicant lacked standing and s163 ERA meant Authority could not make an order cancelling or varying collective agreement – Respondent asked that that part of applicant’s claim be struck out – Effect of s163 ERA clear and certain – Union argued section no obstacle to request for declaration MEMUCA void ab initio because agreement not what it purported to be and in a sense did not exist because not true collective agreement – Authority did not accept position because were it to meet union’s request clear and certain effect would be clearly that of cancelling agreement – Validity of purported agreement matter properly tested by application of s194 ERA – No evidence could void effect of ss163 and 194 ERA – Partial strike out application granted - Decision did not stop applicant pursuing other claims relating to alleged breaches of good faith
Result: Application granted ; Orders accordingly ; Costs reserved
Otago Taxis Ltd v Strong
2 Mar 2007, Couch J, CC 6/07, (1 pages)
PRACTICE AND PROCEDURE – De novo challenge to determination of Employment Relations Authority (see: CA 143/05) – Application for leave to file statement of defence out of time – 87 day delay – Application by plaintiff for leave to file notice of opposition out of time – 7 week delay – Defendant self-represented – Defendant alleged advised by solicitor need not file statement of defence but could defend matter in person at hearing – Plaintiff provided no evidence in support of its application – HELD – Where proceedings were properly before Court and there was no question of prejudice all affected parties should have opportunity to be heard – Plaintiff’s application granted – Defendant sufficiently explained inaction – Defendant affirmatively given wrong advice and was reasonable she would accept that advice – Unrealistic for defendant to issue proceedings in District Court against solicitor – No evidence plaintiff prejudiced by defendant’s delay – Defendant’s application granted
Result: Applications granted ; Orders accordingly ; Costs reserved
Pfenniger v Vice Chancellor of the University of Auckland
3 Oct 2006, D King, AA 311/06, (2 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Applicant sought removal of two matters: whether grievance raised within 90 days and application for leave to raise personal grievance out of time - Respondent initially did not oppose removal based on Court's Minute referring to likelihood of application for removal - However, applicant had not progressed with de novo challenge to earlier determination regarding 90 day issue - Proceedings administratively withdrawn in Employment Court - Application for leave should be determined by Authority at first instance and 90-day issue was de novo challenge - No grounds for removal
Result: Application dismissed ; Costs reserved
Ramsay v The Commissioner of Police
19 Apr 2007, H Doyle, CA 45/07, (4 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court – Applicant sought removal of personal grievance to Employment Court under s178(2)(d) Employment Relations Act 2000 ("ERA") – Another personal grievance lodged at same time by colleague - Colleague's application to have claim removed to Court dealt with in separate determination (CA 46/07) - Discretion under s178(2)(d) ERA wide and Authority had regard to object section in Part 10 ERA – Not enough that parties wanted matter removed – Cross examination or witness numbers not factors sufficient on their own to favour removal – Whether matter dealt with in Authority or Court it would occupy considerable investigation time and likely involve interlocutory matters – Factors not sufficient on their own to favour removal – Likelihood of challenge not factor that favoured removal – Authority did not accept facts relied on by applicant were applicable to cases Authority determined on daily basis – Most cases did not have such historical issues or issues relating to disclosure – Applicant spent number of years trying to obtain disclosure and claimed still incomplete – Possibility information disclosed as result of discovery may bear on interpretation and application of Police general instructions – Court’s more prescriptive procedures and powers relating to discovery favoured removal – Applicant made serious allegations and public interest in how treated favoured removal – Circumstances would not, on their own, be sufficient for Authority to exercise discretion to remove matter to Court – However, considered together discretion should be exercised in favour of removing matter – Removal ordered
Result: Application granted ; Matter removed to Court ; Costs reserved
Rogers v Otamatea Veterinary Club Inc
30 Aug 2006, A Dumbleton, AA 126A/06, (5 pages)
PRACTICE AND PROCEDURE - Quantum of remedies - Parties directed to mediation to reach agreement on remedies but unable to resolve issue - Application for reinstatement not pursued further during investigation meeting - Employment agreement provided for two weeks wages in lieu of notice - Evidence of actual loss vague and applicant failed to comply with Authority's request for information - Extent of lost wages unable to be quantified - Lack of evidence relating to outstanding holidays - Contributory conduct - Fair and reasonable employer would in all probability have dismissed applicant, although possibly on notice rather than summarily - High level of contribution because applicant demonstrated complete disregard towards trust and confidence supposed to tie her to respondent - Situation overstated in first determination - Applicant's conduct would not have been rewarded with bonus - Only loss attributable to unjustified action and unjustified dismissal was loss of two weeks wages set out in employment agreement - Calculation of exact amount left to parties with leave reserved to seek further orders if necessary - Authority concerned at merry-go-round of counsel acting or purporting to act for legally aided applicant - Rules of legal professional conduct did not permit practitioner who had been witness to step back into role of counsel, which one of applicant's representatives purported to do by filing closing submissions - Rules applied equally where affidavit evidence tendered
Result: Reimbursement of lost wages (Two weeks) ; Orders accordingly ; Costs reserved
Rongonui & Anor v P Te Whata & Anor
15 Feb 2007, P Cheyne, CA 17/07, (6 pages)
PRACTICE AND PROCEDURE - Identity of employer - Applicant signed "agreement to contract" - Employer named on contract not Maori incorporation, as claimed by respondent, or other legal entity - Respondents clearly controlled shearing gang, and signed agreement - Applicant entered legal relationship with respondents trading as employer named in contract - Authority made order identifying respondents by full names - JURISDICTION - Whether employee or independent contractor - Although contract in language of contract for services and negated several usual incidents of employment, applicant not working on own account - Had no control over work conditions - Work integral to respondents business - Real nature of relationship employment - Employee - Applicant made submissions about fairness of terms and circumstances in contract - If had found relationship not employment, s6 Minors' Contract Act 1969 would have applied since applicant young (16 years old) - UNJUSTIFIED DISMISSAL - Applicant claimed threatened with violence - Left job after sworn at but agreed to return - Parties later argued about getting sheep into shed - Applicant said not his job - Told to leave and not come back - Initiative for termination of employment came from respondent - Words used could constitute dismissal and did so in circumstances - Nothing about respondent's response could have constituted actions of fair and reasonable employer - Unjustified dismissal - UNJUSTIFIED DISADVANTAGE - Given unjustified dismissal finding unnecessary to deal with disadvantage claim - ARREARS OF WAGES AND HOLIDAY PAY - Arrears of holiday pay due and owing - Respondent made "charitable tax" deductions from applicant's wages - Deducted wages due and owing, unless respondent could account for it by proving payment made to Inland Revenue - Length of service two weeks - Shearing gang presser
Result: Application granted ; Compensation for humiliation etc $2,000 ; Arrears of wages ($239.42)(charitable tax deduction) ; Arrears of holiday pay ($68.41) ; Costs reserved
Spink v APN New Zealand Ltd
13 Sep 2006, D Asher, WA 122/06, (7 pages)
PRACTICE AND PROCEDURE - During investigation meeting parties settled part of grievance - Applicant withdrew claims relating to deduction from wages in return for payment from respondent - UNJUSTIFIED DISADVANTAGE - DISPUTE - Applicant claimed disadvantaged and sought declaration entitled to redundancy compensation - Applicant’s position no longer required after restructure - Pursuant to employment agreement respondent required applicant to revert to former role - Applicant claimed offer did not amount to “suitable alternative employment” and therefore entitled to redundancy compensation - Suitability of alternative position to be determined objectively - Applicant’s role post restructuring substantially similar to work undertaken prior to restructuring - Location, hours, pay and daily duties unchanged - Only change was applicant could no longer use title of deputy shift supervisor - Suitable alternative employment - No unjustified disadvantage - Applicant not entitled to redundancy compensation - Length of service seven years - Printer
Result: Application dismissed ; Costs reserved
Wilson & Ors v Mr X Ltd & Ors
14 Sep 2006, Y Oldfield, AA 293/06, (4 pages)
PRACTICE AND PROCEDURE - Identity of employer - First respondent held licences and leases for premises where applicants worked and had “contracting bar agreement” with second respondent - Second respondent responsible for operation of bars and in business on own account - First respondent not consulted when staff hired and unaware of terms and conditions of employment - Second respondent received all takings and paid all expenses, including wages - Second respondent acknowledged initially engaged applicants on her own behalf - That was also understanding of some applicants, although others thought employed by first respondent, or respondents were partners - Payment of PAYE under name of first respondent simply device to hide fact second respondent operating without licence - Although applicants performed some tasks related to first respondent's gaming business not bulk of duties - Second respondent employer - First respondent removed as party to proceedings - Applicants related to second respondent and appeared may not want to proceed against her - No further action to be taken by Authority until advised of applicants' intentions
Result: Orders accordingly ; Costs reserved
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