Practice & Procdure - Employment Relations Act 2000
Clark v Dargaville High School Board of Trustees
31 Oct 2007, R Arthur, AA 344/07, (9 pages)
JURISIDICITON - Whether Authority could consider all of applicant’s claims - Applicant alleged constructively dismissed - Previously commenced proceedings in District Court alleging respondent negligent in duty of care to provide safe workplace, breached contractual obligations to approve salary increase, defamed him through comments in personnel file and failed in obligation to support him to full teacher registration - Proceedings stayed by Court as matter within Authority’s jurisdiction - Court reserved leave for applicant to seek to remove stay if Authority unable to remedy legitimate grievance - Taken as reference to whether Authority could order injunction requiring removal of documents from applicant’s personnel file - Authority able to investigate all of applicant’s claims and had adequate powers to remedy any legitimate grievance - Injunctive relief to enforce contractual obligations open to Authority as remedy – Claim pleaded in “language” of torts - However, Authority not bound to treat matter as type described - Factual basis of claims gave rise to employment relationship problems as defined by Employment Relations Act 2000 (“ERA”) - Matter within exclusive jurisdiction of Authority - Although exemplary damages not available Authority did not consider this would support argument applicant might have outstanding claims to be heard in civil courts - PRACTICE AND PROCEDURE - Application for removal to Employment Court - Respondent submitted applicant likely to challenge any adverse determination - Also concerned about applicant’s ability to pay costs if unsuccessful - Applicant presently living overseas and respondent wanted security for costs, an order it submitted was only available from Employment Court - Neither ground triggered specific criteria in ERA - No factual foundation offered for suggestion security for costs required or that applicant would be unlikely to meet costs if ordered - If Authority not able to order security for costs, that could not, on its own, be reason for removal to Court - Such orders unnecessary in light of modest level of costs usually awarded in Authority - Application for removal declined - Matter to proceed to investigation - Teacher
Result: Orders accordingly ; Costs reserved
Clear v Waikato District Health Board
5 Sep 2007, J Scott, AA 33A/07, (9 pages)
PRACTICE AND PROCEDURE – Quantum of remedies – Previous Authority determination found applicant unjustifiably disadvantaged by respondent’s failure to investigate complaint against team leader or treat her fairly during process – Question of remedies reserved – Evidence of hurt and humiliation related to breach supported award at higher level – Breach of duty very serious and sustained over lengthy period (12 months) – further, respondent knew applicant ill and had particular duty to complete investigation in timely manner – Authority not persuaded applicant contributed to grievance – Ioane distinguished – Compensation of $15,000 appropriate – Lost remuneration resulted from break down in health, not disadvantage grievance – No award of lost wages - Applicant also claimed owed monies in respect of lieu days not taken by her prior to termination of employment – Number of lieu days claimed by applicant outside normal parameters of custom and practice arrangement that prevailed – No evidence arrangement ever provided for lieu days to paid out – No award for lieu days
Result: Quantum specified ; Compensation for humiliation etc ($15,000) ; Costs reserved
Crutchley v Chief Executive of the Ministry of Social Development
17 Oct 2007, J Scott, AA 327/07, (15 pages)
PRACTICE AND PRCEDURE - Whether grievance raised within 90 days - Applicant had previously filed unjustified disadvantage and breach of contract claims but withdrew them - Sought to reinstate original claims and add claim for unjustified dismissal - Respondent considered dismissal grievance outside 90 day time limit and objected to original claims being re-filed - Letter by applicant’s first agent merely indicated intention to raise grievance - Respondent did not breach good faith by not advising applicant letter insufficient as reasonable for it to wait for further information promised in letter - Dismissal grievance not raised within 90 days - Applicant sought leave to raise out of time - Exceptional circumstances that original representative would give notice of intention to raise grievance and not go on to provide specifics - Unreasonable failure by agent occasioned delay in raising grievance - Just to grant leave - Two year delay in bringing original proceedings to investigation excessive and reason for delay (to secure finances to pursue claims) unacceptable - However, original disadvantage grievance raised correctly and action commenced within three year limit - Applicant entitled to have disadvantage grievance determined by Authority - Penalty action brought well out of time and dismissed - Parties directed to mediation
Result: Orders accordingly ; Parties directed to mediation ; Costs reserved
Dickson v Idea Services Ltd
24 Oct 2008, G J Wood, WA 117A/08, (2 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - In determination WA 117/08 Authority found applicant’s sleepovers constituted work and therefore applicant should have been paid accordingly - Parties had agreed that if respondent found liable, issue of quantum to be determined subsequently - Respondent challenged determination on liability - Parties agreed issue of quantum should now also be removed to Court - Determination of liability by Court will be a condition precedent to determination of quantum by Authority - Authority possibly better placed to undertake investigation into calculation of pay than Court - However, difficult questions of law could arise in determining quantum - Removing matter would allow Court to consider matter as a whole - Mitigating factors insufficient to outweigh factors in favour of removal - Authority ordered removal to Court of those parts of employment relationship problem not already subject to challenge in Court
Result: Application granted ; Matter removed to Court ; No order for costs
Hill v Methodist Mission Northern
24 Sep 2007, J Scott, AA 293/07, (10 pages)
PRACTICE AND PROCEDURE - Whether grievance raised within 90 days - Respondent alleged letter relied on by applicant insufficient to raise dismissal grievance - Letter referred to unjustified disadvantage not unjustified dismissal - Applicant submitted grievance also raised by way of earlier oral protest - Alternatively argued grievance could be raised by considering series of communications - Applicant made respondent aware of allegation of unjustified dismissal within time limit - Grievance raised in person at meeting as representative advised why applicant disputed respondent’s decision and stated would go to mediation or “Employment Tribunal” - Despite referring to unjustified disadvantage, letter stated grievance related to termination of employment - In entirety, sufficient to raise dismissal grievance - Individually and together, communication at meeting and subsequent letter made respondent aware applicant alleged unjustifiably dismissed and wanted grievance addressed - Grievance raised within time - Manager
Result: Orders accordingly ; Costs reserved
Innes v Miyazawa
30 Aug 2007, J Crichton, CA 105/07, (9 pages)
PRACTICE AND PROCEDURE - Application to strike out - Identity of employer - Grievance initially filed against company but amended statement of problem named respondent as employer - Respondent contended applicant proceeding against him because company in liquidation - Applicant accepted originally employed by company - Alleged employer changed by agreement and respondent crystallised new obligation by making wage payments to him - Document relied on by applicant not signed by employer party and referred to trading name only - Not helpful in identifying employer - No agreement between parties - Applicant’s alternative argument seeking to lift corporate veil outside scope of preliminary question and not addressed - On balance of probabilities no tenable case for contention applicant employed by respondent - Applicant’s failure to explain all documentation describing another entity as employer was fatal flaw - Applicant senior employee and reasonable to expect he understood who employer was - Payments by respondent not evidence of wider obligation - Justice of case did not require it to proceed - Application to strike out granted - Business manager
Result: Orders accordingly ; Application struck out ; Costs reserved
Moore v PG 2000 Ltd
12 Sep 2007, D Asher, WA 127/07, (6 pages)
JURISDICITON - PRACTICE AND PROCEDURE - Whether applicant’s claim statute barred by s317 Injury Prevention, Rehabilitation and Compensation Act 2001 (IPR&C Act) - Applicant alleged exposed to tungsten and cobalt during employment which resulted in health problems - Sought compensation from respondent - Respondent denied causal link between work and health problems - Applied to strike out claims on grounds barred by IPR&C Act - After Department of Labour OSH investigation hazards were remedied and new practices adopted - Applicant later resigned and successfully applied for ACC - No reason to find respondent either knew, or should reasonably have known, applicant’s working conditions breach health and safety obligations - Not an unjustified disadvantage case - Damages claimed by applicant arose directly or indirectly from personal injury - Applicant statute barred from pursing matter in Authority - Fitter and turner
Result: Application dismissed ; Costs reserved
Park v K & C Howick Ltd t/a Howick Kim's Club & Anor
14 Aug 2007, D King, AA 247/07, (14 pages)
UNJUSTIFIED DISMISSAL – Redundancy - Proceedings complicated by applicant’s large investment or loan to first respondent – Matter outside Authority’s jurisdiction but coloured employment relationship - Identity of employer – Part of first respondent sold to second respondent and director agreed to second staff to second respondent – Applicant remained employee of first respondent but should have been informed of sale and consulted about “secondment” – Directors suggested applicant look for new employment but would continue to pay PAYE to help him meet residency requirements - No instruction not to come to work – Duties removed from applicant and pay stopped – Applicant alleged after unsuccessful mediation approached by “gangsters” who demanded problems be resolved without recourse to Courts – Authority accepted he felt intimidated but no evidence they were in fact gangsters, or hired by director to intimidate applicant – Applicant later dismissed when position disestablished – Clear much of work related to applicant’s role ceased to exist well before notification of possible redundancy – Failure to notify and discuss situation breached good faith, as did failure to discuss “secondment” – Later attempts at consultation a sham - Dismissal unjustified – UNJUSTIFIED DISADVANTAGE – Reason for failure to pay wages never made clear – Difficult to escape conclusion failure related to poor relationship between parties – Applicant unjustifiably disadvantaged – Failure by respondent to appropriately deal with situation that arose in workplace also constituted disadvantage - Remedies – No lost wages as work disappeared – Global award of compensation – Contributory conduct 25 percent - ARREARS OF WAGES AND HOLIDAY PAY – Arrears of holiday pay due and owing – Respondent deducted amounts equal to applicant’s PAYE from loan repayments – Deductions not agreed but as matter unrelated to employment Authority could not order reimbursement - PRACTICE AND PROCEDURE - First respondent placed in liquidation after investigation meeting – Registrar of Companies accepted applicant’s objection to removal of company from Register on basis it was party to legal proceedings - Marketing Manager
Result: Application granted ; Compensation for humiliation etc ($4,000 reduced to $3,000) ; Arrears of holiday pay ($2,726.73) ; Costs reserved
Pellow-Jarman v CMI Fastners Ltd
3 Sep 2007, M Urlich, AA 271/07, (5 pages)
PRACTICE AND PROCEDURE - Supplementary determination - Quantum of remedies - Whether applicant overpaid during employment - Authority previously upheld applicant’s claim for bonus to be included in calculation of holiday pay - Labour Inspectorate calculated amount owing - Respondent claimed not obliged to pay outstanding amount because applicant overpaid when received earning related compensation for non-work injury during employment - Respondent paid applicant full wages from time of accident until return to work - Claimed under employment agreement not required to pay applicant for time off work due to non-work injury and sought return of full amount - Applicant claimed had repaid difference between wages and ACC payments as unlawful to receive both, but no other amount outstanding - No evidence payment of debt raised with applicant during employment - Insufficient evidence to support claim applicant in debt to respondent - Holiday pay calculation not challenged by either party - Respondent to pay arrears forthwith with interest
Result: Orders accordingly ; Disbursements in favour of applicant ($70)
Perez v Focus 2000 Ltd
20 Aug 2007, R A Monaghan, AA 253/07, (7 pages)
PRACTICE AND PROCEDURE - Respondent objected to parts of brief of evidence filed by applicant’s witness - At material times witness acting as advocate for applicant - Respondent alleged brief referred to substance of without prejudice discussion between witness and its advocate - Applicant submitted evidence not “without prejudice” as no dispute at time - From parties’ evidence clear both intended discussion to be kept in confidence - Entered into against background of ongoing disciplinary investigation and amounted to attempt to resolve associated problem arising in the employment relationship - Implicit in discussions that purpose was to resolve potential litigation - Background sufficient to amount to dispute for purposes of without prejudice rule in employment context - Alternatively, applicant argued interests of justice required without prejudice rules to be overridden - In particular, claimed required evidence to show role of respondent’s advocate in dismissal - Other evidence available on issue and doubtful Authority would be deceived or misled by exclusion of disputed statements - Fairness of entering into discussion not relevant to whether it ought to be detailed in evidence - No exception to without prejudice rules applied - Applicant also claimed respondent waived privilege by supplying document that referred to fact conversation took place - Message did not disclose significant part of privileged information and did not have effect of waiving any privilege attached to content of discussion - Evidence relating to discussion to be removed from witness’ brief and related paragraph in respondent’s evidence also to be removed -Applicant did not dispute that an additional sentence should also be removed from brief - Orders accordingly
Result: Application granted ; Orders accordingly ; No order for costs
Rasmussen v Medlab Central Ltd
28 Sep 2007, J Crichton, WA 133/07, (12 pages)
COMPLIANCE ORDER - DISPUTE - Applicant sought compliance with collective employment agreement (“CEA”) - Alleged incorrectly classified as medical laboratory assistant instead of medical laboratory scientist - Submitted CEA required she be paid as scientist as she had qualifications required by scientist coverage clause, notwithstanding fact originally appointed as assistant and irrespective of work actually performed - Respondent argued nothing prevented it from remunerating employees based on work performed and applicant’s work fell within terms of assistant - On evidence, applicant performing work of scientist and covered by scientist clause in CEA - Applicant entitled to declaration she be paid as medical laboratory scientist, entitled to back pay from date she met all qualifications for role - PRACTICE AND PROCEDURE - Respondent alleged proceedings begun more than six years after cause of action arose - Argument made out, however, applicant only met qualifications required by CEA for previous two years and limited her claim accordingly, so claim able to proceed - BREACH OF CONTRACT - Applicant’s allegation failure to recognise her as scientist breached terms fair and reasonable treatment already dealt with by application of CEA - Additional claim of disparity of treatment - Scientist hours available on other shifts but applicant unable to change shifts due to family commitments - Considered respondent should have reassigned scientist hours to her shifts as appeared to have done for other employee - Authority accepted other employee in “personal to holder” situation - No breach of contract or fair and proper treatment requiring compensation for non-economic loss - Medical laboratory scientist
Result: Application granted in part ; Orders accordingly ; Costs reserved
Wackrow v Fonterra Co-Operative Group Ltd
28 Sep 2007, R A Monaghan, AA 299/07, (11 pages)
PRACTICE AND PROCEDURE - Whether grievance raised within 90 days - Respondent claimed letter from applicant not sufficient to raise grievance as contained no information to enable it to respond or address grievance - Although letter broadly worded, it did not create same difficulty for respondent as faced by employer in Creedy v Commissioner of Police (cited below) - Relevant act of dismissal readily identified - Case law not read as requiring employees raising grievance to put something to which employer could respond - Each time Court was considering on the facts whether clear to employer that employee aggrieved about particular matter in statutory sense of having a grievance, and wanted something done about it - Applicant conveyed this to respondent - Surrounding circumstances enabled identification of significant features of applicant’s sense of grievance - Fuller details not required - Grievance raised in time - Respondent’s submission action not commenced within three year limit rejected - Grievance raised within time
Result: Orders accordingly ; Costs reserved
