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Bachelor & 35 Ors v Secretary for Justice, Ministry of Justice
1 Mar 2007, D Asher, WA 31/07, (6 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Central question concerned salary review obligations under employment agreements and remuneration policy - Applicants submitted in public interest as involved senior Crown employees bringing sizable claim and recourse to Court inevitable - Application opposed by respondent - Task before Authority not novel or unusual - Routine examination of individual circumstances and interpretation of employment policy and its application to employees - No important question of law - Unlikely to impact significantly on employment law generally - Very late application - Investigation meeting set down - Challenge to Authority's determination not inevitable - Application declined
Result: Application dismissed ; Costs reserved
Barry v Anoop Investments Ltd
2 Jul 2007, M Urlich, AA 11A/07, (4 pages)
PRACTICE AND PROCEDURE - Supplementary determination regarding quantum of remedies - Authority had ordered reimbursement of lost wages - Parties unable to agree on calculation - Respondent's version of calculation fairly reflected agreement between parties - Holiday pay to be calculated on outstanding sum - COSTS - Investigation meeting less than one day - Applicant sought contribution of $6,000 to total costs of over $9,000, plus disbursements - Respondent sought fair contribution to costs incurred of $7,000 - Submitted had to defend unmeritorious claims - Appropriate to award $2,000 costs to applicant
Result: Orders accordingly ; Costs in favour of applicant ($2,000)
Barry v Anoop Investments Ltd and Ors
18 Jan 2007, M Urlich, AA 11/07, (5 pages)
PRACTICE AND PROCEDURE - No written employment agreement - Identity of employer - First respondent company and its directors named respondents - Applicant believed director personally employed him - Authority satisfied first respondent applicant's employer - ARREARS OF WAGES - Applicant claimed agreed to work no less than 40 hour weeks and sought arrears when rostered less than 40 - Not credible applicant would have waited to assert agreement - No agreement applicant to work minimum of 40 hours - Respondent presented new roster reducing applicant's hours - Authority not satisfied respondent conducted transparent consultation process - Applicant did not agree to permanent reduction - Implementation of roster breached terms of employment agreement - Respondent ordered to pay arrears for days applicant rostered off as result of reduction until resignation - Insufficient evidence parties agreed to loyalty bonus - Bonus claim dismissed - UNJUSTIFIED DISMISSAL - Constructive dismissal - Respondent told applicant could not afford to employ him and to look for other employment - Applicant raised arrears claim and personal grievance - Claimed employment relationship deteriorated and put under stress causing his resignation - Breach did not cause resignation as reduction issue ongoing over period of year - Other alleged breaches not sufficiently serious that risk of resignation reasonably foreseeable, and allegations not raised with respondent - No constructive dismissal - UNJUSTIFIED DISADVATANGE - Disadvantage claim out of time - PENALTY - Respondent failed to provide written employment agreement - Failure created uncertainty about terms of employment - However, intended to provide written employment agreements to staff but overlooked applicant - Oversight not wilful avoidance of s65 Employment Relations Act 2000 obligations - Penalty declined - Butchery manager
Result: Applications dismissed (Unjustified dismissal, unjustified disadvantage) ; Arrears of wages (Quantum to be determined) ; Costs reserved
Clearkin v The Friendship Centre Trust Inc
12 Feb 2007, R A Monaghan, AA 29/07, (3 pages)
PRACTICE AND PROCEDURE - Parties signed mediated record of settlement - Settlement full and final in respect of all matters resulting from employment relationship - Applicant dissatisfied with way mediation conducted and wished Authority to address grievance and other concerns as if no settlement reached - Respondent submitted matter resolved and sought order matter closed - Applicant also raised issue about payment under settlement - Did not allege breach, instead took issue with respondent's accounting practices - Applicant had not appreciated significance of s149(3) Employment Relations Act 2000 - Bound to terms of settlement and prevented from bringing terms before Authority - Applicant's employment relationship problem could not be taken any further
Result: Orders accordingly ; No order for costs
D & M Ashwell v Clayton
7 Feb 2007, R A Monaghan, CA 14/07, (3 pages)
PRACTICE AND PROCEDURE - Identity of employer - Authority previously agreed to reopen investigation into whether applicants employed respondent in personal capacity or through their company ("AHL") - AHL removed from register of companies - AHL owned and operated business where respondent worked - Accounting and tax information consistent with AHL as employer - No evidence applicants held themselves out as employer - Some weight given to fact respondent recognised possibility employed by a company - Cited AHL as employer when problem first filed - More likely than not AHL employer
Result: Orders accordingly ; Costs reserved
Denton v Gorrie Fuel (SI) Ltd
23 Aug 2007, H Doyle, CA 68A/07, (6 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 - Applicant's hourly rate $10.00 - Authority calculated applicant's entitlement in accordance with formula s9(3) Holidays Act 2003 - Respondent ordered to pay applicant $634 for 8 alternative holidays and arrears claim - COSTS - Successful personal grievance - ½ day investigation meeting - Applicant submitted actual costs exceeded $4,000 and sought a contribution of $2,500 - Respondent argued applicant attempted to increase costs by conduct, failing to file documents on time and bringing inadmissible evidence - Also submitted holiday pay matter should have been dealt with by Labour Inspector - Not persuaded would have greatly impacted on costs had matter been dealt with elsewhere - Challenge to Employment Court not good reason to not determine costs - No good reason not to make award of costs to successful applicant - Adjustment in award for delay in lodging briefs - Fair and reasonable contribution to applicant's costs awarded
Result: Quantum specified ; Arrears of holiday pay ($634) (Public Holidays) ; Costs in favour of applicant ($1,800)
Khan v Khan
7 May 2007, Perkins, J, AC 22/07, (1 pages)
PRACTICE AND PROCEDURE - Application to strike out appeal against Employment Tribunal decision - Tribunal ordered plaintiff pay defendant lost wages and holiday pay - Plaintiff adjudicated bankrupt and judgment debt never paid - Appeal against Tribunal decision filed in August 1995 - Notice of appeal served on defendant in June 2006 - Delay unexplained - Appeal hearing set down for October 2006 but adjourned due to non-compliance with Employment Contracts Act 1991 - Court indicated it would wish to hear preliminary argument regarding substantial impediments against appeal proceeding - Defendant applied to strike out appeal - Defendant submitted proceedings were moot, vexatious and frivolous - Further, plaintiff had breached regulation to bring and serve appeal as soon as practicable, and had failed to comply with directions for preparation of appeal - Plaintiff took no formal steps in strike out application - Plaintiff appeared in person and unsuccessfully sought adjournment or two further days to file submissions - HELD - Bankruptcy and time elapsed were substantial impediments to plaintiff pursuing
appeal - Defendant would require leave to enforce judgment debt and grant of leave unlikely - Defendant indicated he had no intention to enforce debt - Matter moot - Attempts to pursue appeal amounted to frivolous proceedings - Application granted - Costs in favour of defendant
Result: Application granted (strike out) ; Costs in favour of defendant ($500 plus disbursements)
Maio v Effective Fencing Management Ltd t/a Upstairs Ltd
29 Jun 2007, R A Monaghan, AA 196/07, (3 pages)
PRACTICE AND PROCEDURE - Application to re-open investigation - Applicant sought to reopen three Authority determinations on grounds certain contents of decisions from other courts amounted to information not available to Authority at time of its investigation - Information concerned identity of employer - Decisions appeared to show various misrepresentations made, including to applicant when entered employment relationship - No permission from liquidator to proceed against company in liquidation, however Authority considered matter as concerned with identity of employer - Determinations applicant sought to reopen were challenged to Employment Court - Application before Court to join other company and its managing director as parties to challenges - Nothing to stop applicant raising issue of identity of employer during challenge or application for joiner - While allegations of misrepresentation new, could also be raised during challenge - Not appropriate or necessary for Authority to address or reconsider matters which could be addressed in course of challenge already properly before Employment Court - Would be inefficient and ineffective if reopened determinations were challenged - Application to reopen declined
Result: Application dismissed ; No order for costs
Miki v Borg Industries Ltd
27 Mar 2007, YS Oldfield, AA 93/07, (1 pages)
PRACTICE AND PROCEDURE - Applicant one of five employees who brought employment relationship problem to Authority - Unable to attend original investigation meeting so claim taken no further at that stage - Instructed to advise Authority if wished to resume investigation and she did - However, failed to attend second investigation meeting - Matter treated as dismissed
Result: Orders accordingly ; No order for costs
Nataniel v Golf Management and Consultancy Ltd
25 Jun 2007, M Urlich, AA 141A/07, (2 pages)
PRACTICE AND PROCEDURE - Respondent given 14 days to file additional evidence regarding calculation of applicant's arrears claim - Information provided sought to dispute arrears claim on basis issue not raised during employment - Respondent had fair opportunity to respond to claim and calculation - No convincing evidence wage rate in employment agreement varied - Respondent to pay $3,900, the difference between recorded rate and what applicant paid
Result: Orders accordingly ; No order for costs
New Zealand Amalgamated Engineering Printing and Manufacturing Union Inc v Air Nelson Ltd
2 Jul 2007, P Cheyne, CA 72/07, (2 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Applicant sought penalty and compliance order against respondent for allegedly using contractors to perform work of striking employees - Already proceedings before Court between parties - Same, similar or related issue likely to arise in present proceedings - Matter removed to Court
Result: Application granted ; Costs reserved
O'Neill & Anor v Kamo Labour Ltd
20 Mar 2007, L Robinson, AA 82/07, (2 pages)
PRACTICE AND PROCEDURE - Day before investigation meeting respondent advised struck off Companies Office register - Respondent struck out as party - Investigation suspended - Applicants to advise Authority of intentions by given date or investigation would be concluded and file closed - Determination to be provided to parties
Result: Orders accordingly ; No order for costs
Service and Food Workers Union Nga Ringa Tota v Spotless Services (NZ) Ltd
8 Aug 2007, A Dumbleton, AA 236/07, (3 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Claim for arrears of wages - Important questions of law likely to arise - Whether employer liable to unlawfully locked out employees for wages lost - Whether liability (if any) reduced or eliminated if employer received strike notices in respect of period of unlawful lock out - Key aspect of parties' dispute already decided by Court - More efficient for Court to deal with whole application rather than remove question of law - Authority less persuaded by applicant's urgency argument - Real concern whether genuine circumstances of urgency likely to be met by removing a matter to Court, although in this case Court assured quick disposal - Matter removed to Court
Result: Application granted ; Matter removed to Court ; No order for costs
Taylor v eCom New Zealand Ltd
30 Jan 2007, K Raureti, AA 21/07, (4 pages)
PRACTICE AND PROCEDURE - Application for stay of proceedings - Five determinations issued relating to employment relationship problem - Applicant sought stay of last two determinations, for damages and costs - Applicant had applied to Employment Court for de novo challenge of both determinations - Submitted could pay amounts by way of monthly instalments but preferred to hold payments until matters heard by Court - Respondent submitted applicant provided written undertaking as to damages and therefore waived right to stay - Claimed challenges not filed expeditiously - Authority satisfied challenges being actively progressed without undue delay - Applicant's financial circumstances not those of impercuniosity - When interim reinstatement ordered, Authority placed considerable importance on, and drew attention to, implications of undertaking - Important to maintain confidence of employer community that undertakings serious and enforceable in normal circumstances - Respondent, who had been successful in all proceedings except interim reinstatement, had right to expect fruits of success - Application for stay declined - COSTS - Matter decided without investigation meeting - Respondent sought costs for expense associated with applicant's indulgence - Applicant had certain rights and exercised them through appropriate legal avenues - Submissions very brief - Costs to lie where they fall
Result: Application dismissed ; Costs to lie where they fall
Watt v RD Managh Ltd t/a Odin's Marine
13 Feb 2007, M Urlich, AA 32/07, (1 pages)
PRACTICE AND PROCEDURE - Applicant requested certificate of determination - Authority had previously reduced applicant's award of lost wages - Authority stated amount of total award
Result: Orders accordingly ; No order for costs
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