Costs - Employment Relations Act 2000
Andrews v Nyalaberry Ltd
9 Sep 2008, R Arthur, AA 187A/08, (3 pages)
COSTS - Partially successful personal grievance - ½ day investigation meeting - Applicant succeeded in recovery of wages claim, however respondent succeeded in defending substantive personal grievance claim - Respondent sought $3,000 costs award for total costs of $4,590 - Applicant sought $855 for costs - Respondent's without prejudice offer of $2,000 made prior to investigation meeting rejected - Due to ultimate outcome applicant could not recover costs - Respondent entitled to reasonable contribution to costs
Result: Costs in favour of respondent ($1,000)
Brand Developers Ltd t/a TV Shop v Sula
12 Sep 2008, L Robinson, AA 236A/08, (2 pages)
COSTS - Successful recovery of monies - ½ day investigation meeting - Respondent sought contribution to costs of costs $2,666 - Applicant did not attend investigation meeting or defend matter - Authority not in position to take into account applicant’s financial situation - Found it appropriate to award respondent contribution to costs at lower end of sale
Result: Costs in favour of applicant ($750)
Burlinson v Wellman Group Ltd
13 Oct 2008, D King, AA 355/08, (3 pages)
UNJUSTIFIED DISMISSAL - Redundancy – Verbal agreement for two week trial period - No written employment agreement – Respondent told applicant that applicant no longer required as not much work had come in – Respondent originally agreed to pay one month’s salary in lieu of notice, and allow applicant to use company car and phone to pursue other employment opportunity – Applicant requested additional compensation from respondent – Respondent became angered and withdrew agreement to pay month in lieu of notice – Authority accepted applicant genuinely redundant – Found applicant not consulted and given no notice that employment at risk – Dismissal unjustified – Remedies – No contributory conduct – Suddenness of dismissal, lack of opportunity for input and short period of employment were traumatic and upsetting for applicant – $4,000 compensation appropriate – ARREARS OF WAGES – Holiday pay unpaid – Quantum to be determined – Interest payable on holiday pay – COSTS – Applicant represented self but obtained legal advice – Applicant to be reimbursed for legal advice and filing fee - Sales Representative
Result: Application granted ; One month’s pay in lieu of notice ; Compensation for humiliation etc ($4,000) ; Arrears of holiday pay (Quantum to be determined)(Interest at 9.6%) ; Costs in favour of applicant ($300) ; Disbursements in favour of applicant ($70)(filing fee)
Davidson v Y3K Energy Pty Ltd and Anor
23 Sep 2008, Y S Oldfield, AA 54B/08, (5 pages)
COSTS - Partially successful personal grievance - Length of investigation meeting not specified - First respondent sought payment of actual and reasonable legal costs of $17,050 and disbursements of $6,410 on basis applicant rejected two reasonable without prejudice offers save as to costs - Applicant argued costs should lie where they fall - Authority found each party had degree of success in investigation meeting - Fairest course for costs overall to lie where they fall
Result: Costs to lie where they fall
Eastern Bay Independent Industrial Workers Union v Norske Skogg Tasman Ltd
24 Sep 2008, V Campbell, AA 251A/08, (3 pages)
COSTS - Dispute in favour of respondent - Less than half day investigation meeting - Respondent sought contribution of $1,500 plus disbursements to costs - Did not provide actual costs amount - Applicant submitted $500 appropriate contribution to respondent's costs - Respondent entitled to contribution to costs of $750 plus disbursements
Result: Costs in favour of respondent ($750) ; Disbursements ($467.50)
Florentines Patisserie v Bennett
24 Sep 2008, V Campbell, AA 283A/08, (2 pages)
COSTS - Breach of Contract case - Length of investigation meeting not specified - Authority ordered respondent to comply with written employment agreement and cease working for another company - Respondent was found to not have breached confidentiality provisions of employment agreement - As both parties successful to similar extent, appropriate for costs to lie where they fall
Result: Costs to lie where fall
Gipson v Entertainment Publications Ltd
10 Sep 2008, R Arthur, AA 230A/08, (3 pages)
COSTS - Successful personal grievance - One day investigation meeting - Applicant sought award of $3,600 to total costs of $7,200 - Submitted financial circumstances strained by dismissal and remedies substantially reduced without costs award - Respondent argued costs should be based on usual daily tariff rate and felt applicant not adequately mitigated loss - Submitted $1,000 appropriate award of costs - Authority found as applicant was successful in claim costs should follow event - Nothing to indicate applicants costs unnecessarily or unreasonably incurred - Found no reason to lift or lower starting point for costs - Applicant entitled to reasonable contribution to costs of $2,500
Result: Costs in favour of applicant ($2,500) ; Disbursements ($70)(Lodgement Fee)
Harris v Bay Truck Wash Ltd
17 Oct 2007, J Scott, AA 325/07, (13 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant previously alleged unjustifiably dismissed - Mediated settlement provided for applicant’s return - However, prior to return respondent advised applicant could not guarantee safety in workplace - Applicant filed dismissal claim in Authority - Authority initially considered only remedy available was compliance with original settlement - However, respondent’s director indicated would end his life if forced to pay applicant money - Authority decided would not endorse settlement as appeared respondent had not consented - As no settlement, grievance could be investigated - Matter transferred to different Member - Parties interviewed separately - Significant conflict of evidence - Confrontation over applicant’s washing of trucks - Applicant alleged left as considered director becoming abusive - Sought meeting to resolve issues - Subsequently received dismissal letter and final pay - Respondent claimed applicant ignored instructions and took swing at director - Authority did not accept applicant tried to hit director, but concluded both parties at fault over confrontation - Respondent failed to recognise cooling off period required - No fair process - Dismissal unjustified - Remedies - Applicant had no respect for director and ignored instructions - Walking off job not an attempt to de-escalate tension and not conciliatory action - Contributory conduct 25 percent - Lost wages limited as failed to sufficiently mitigate loss - COSTS - Length of investigation meeting not specified - Respondent’s conduct significantly added to applicant’s legal costs - Costs of $4,000 appropriate - Truck washer
Result: Application granted ; Reimbursement of lost wages ($7,718.27 reduced to $5.788.71)(3 months) ; Compensation for humiliation etc ($5,000 reduced to $3,750) ; Costs in favour of applicant ($4,000)
Ka'ai and Ors v Vice Chancellor of the University of Otago
23 Sep 2008, J Crichton, CA 142/08, (6 pages)
COSTS - Multiple personal grievance claims withdrawn prior to investigation meeting - Respondent put to cost by extensive preparation in respect of scheduled two weeks set aside for Authority investigation meeting, which was withdrawn immediately prior to investigation meeting commencing - Respondent claimed $39,000 as contribution to total costs of $42,000 - Authority found respondent on 'balance of probabilities' was entitled to contribution to costs as was put to significant cost defending three claims brought by applicants - Authority also found some of costs incurred by respondent attributable to unnecessary complexity of claims - Both parties suggested tariff based approach but Authority decided against this as no actual investigation meeting took place so no way of knowing how long actual investigation would have taken - Best approach to use premise respondent put to costs of $42,000 and decide what percentage ought be contributed by applicants - Authority found appropriate contribution to respondent's costs would be $15,000 to be paid by applicants jointly or severally
Result: Costs in favour of respondent ($15,000)
O'Hanlon v Vehicle Adaption Services Ltd
10 Sep 2008, R Arthur, AA 239A/08, (3 pages)
COSTS - Unsuccessful Personal Grievance - ½ day investigation meeting - Respondent sought costs of $2966 - Respondent's director represented company - Supplied itemised breakdown of costs including 20 hours of time spent representing company - Other elements of claim included advice from chartered accountants totalling $1166 - Applicant opposed costs being awarded for unspecified advice on employment matters by accountants - Authority found reasonably incurred costs for professional advice entitled respondent to $200 as contribution - Also found executive time spent representing respondent could be reasonably claimed but not full 20 hours - Mediation hours excluded - Respondent entitled to $350 as contribution to costs
Result: Costs in favour of respondent ($350)
Panel Holdings Ltd v Paki
3 Aug 2007, D King, AA 232/07, (13 pages)
BREACH OF CONTRACT – No appearance by respondent – Medial certificate treated as de facto application for adjournment by Authority but further information not provided – Attempt to frustrate process - Applicant alleged respondent breached employment agreement by giving inadequate notice, entering into unauthorised transactions and altering or removing company documents - Respondent had sole charge of administrative and accounting processes – Anomalies came to applicant’s attention – Respondent took sick leave but continued to access accounting system – Entered premises and replaced employment agreement with one containing more favourable terms – Resigned without returning to work, but continued to access company bank account via internet – Audit uncovered $32,000 of unauthorised expenditure, including purchases from Trade Me and personal bills – Attempts to contact respondent unsuccessful – Resignation letter gave notice “per the terms of my contract, effective today” – “Effective today” meant notice began from that date, notice not inadequate – Breached employment agreement by making unauthorised payments for own benefit, and removing and altering documents – Also falsified company records to disguise transactions and increase leave entitlement – Respondent to reimburse applicant – PEANTLY- Respondent’s actions unlawful and punitive action deserved – Behaviour ongoing over lengthy period of time - $5,000 penalty appropriate for each of three breaches – Respondent had raised constructive dismissal claim but failed to supply amended statement of problem - Counterclaim dismissed – Office manager
Result: Application granted ; Damages ($32,813.68) ; Penalty ($15,000) ($7,500 payable to Crown, $7,500 payable to applicant) ; Counterclaim dismissed ; Costs reserved
Rodwil Enterprises Ltd (previously t/a War Hair Design) v Dominguez & Anor
3 Sep 2007, R Arthur, AA 272/07, (16 pages)
RESTRAINT OF TRADE - Applicant alleged first respondent breached restraint of trade by providing hairdressing services to its former clients at second respondent, 50 metres away - First respondent prohibited from soliciting clients dealt with in preceding six months for three months after employment ended, or competing within three kilometre radius - Restraint reasonable, valid and enforceable - Subsequent agreement entered into by parties after employment ended put beyond any doubt first respondent’s acceptance of reasonableness of restraints - First respondent obliged to honour non-solicitation and non-dealing obligations - Whether respondent “dealt” with clients who followed him to new salon - Evidence established he provided services to clients covered by restraint and later agreement - Remedies - Future loss related to clearly defined period as applicant sold business - Revenue gained by second respondent appropriate measure of loss but revenue from services provided by other stylists to former clients excluded as evidence did not clearly establish respondent “dealt” with those clients - Twenty percent reduction to reflect client turnover - Claim against second respondent for aiding and abetting breach adjourned - UNJUSTIFIED DISMISSAL - Counterclaim - Whether dismissed or resigned - Applicant raised possibility of looking for new job with respondent's owners - Alleged told to finish work that day - Following day applicant sent letter purporting to resign - Appeared parties confused over meaning of conversation - English not applicant’s first language - Confusion over notice period misunderstood as direction to leave immediately - Authority not satisfied events comprised dismissal - COSTS - Length of investigation meeting less than one day - Costs of $1,500 reasonable - Hairdresser
Result: Application granted ; Damages ($3,012) ; Interest (10.76%) ; Counterclaim dismissed ; Costs in favour of applicant ($1,500)
Smillie v Forrester Furniture 2006 Ltd
5 Sep 2007, J Scott, AA 274/07, (9 pages)
UNJUSTIFED DISADVANTAGE - No appearance by respondent - Applicant resigned and prepared record of all wages owing - However respondent did not settle up arrears and subsequent payment incomplete - Respondent also presented applicant with bill for purchases made from store at prices higher than allegedly agreed to - When applicant raised personal grievance, respondent contacted police alleging number of items stolen and search warrant executed at applicant’s home - Applicant submitted all items either obtained legitimately or never in her possession - Applicant’s evidence accepted - However, although complaint to police and subsequent search caused applicant much distress not an unjustifiable action that affected employment as occurred after she resigned - Other matters raised by applicant more appropriately dealt with as arrears claim - No unjustified disadvantage - ARREARS OF WAGES AND HOLIDAY PAY - Applicant’s evidence of arrears owing accepted - Arrears due and owing - Although applicant accepted owed some money to respondent for staff purchases no written authority for deductions to be made from wages - Authority accepted applicant would settle account - Shop assistant
Result: Applicant granted (Arrears) ; Arrears of wages and holiday pay ($623.61) ; Expenses ($79.97) ; Application dismissed (Disadvantage) ; Costs in favour of applicant ($1,000)
