| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 1 |
| Determination date | 09 January 2012 |
| Member | P Cheyne |
| Representation | G Downing (applicant and first party) ; J Levenbach ; G Pratt (second party) |
| Location | Christchurch |
| Parties | Chalmers v Physical Therapy Nelson Ltd |
| Other Parties | McFadden, Phillips, Sandston, Downing, and Chisnall t/a McFadden McMeeken Phillips (first party sought to be joined), Active Body Centre Ltd (second party sought to be joined) |
| Summary | PRACTICE AND PROCEDURE – Application to join parties to proceedings – First respondent (“P”) sought to join firm of solicitors instructed by applicant (“M”) and company which applicant had interest in (“A”) – Applicant on leave – P’s solicitors wrote to M setting out P’s requirements of applicant before applicant could resume work – Applicant returned to work without complying with requirements and told by P could not work – Applicant resigned with immediate effect – P claimed M breached contractual obligations and duty of care to applicant by not advising applicant of correspondence with P – P claimed M contributed to breakdown of trust and confidence between P and applicant – Authority found no contractual relationship between P and M – Found claim against M based in tort – Authority declined to join M as party to proceedings – Authority previously found P became applicant’s employer however employment agreement (“EA”) between applicant and original employer (“D”) not changed – Found EA contained restraint of trade and non-solicitation provisions expressed to apply for 6 months – Found applicant director and shareholder of A – Found A incorporated seven weeks after applicant resigned and premises 50 metres away from P – P claimed applicant used A to aggressively and specifically target P’s clientele in breach of restraint of trade provision – A claimed P’s claim based in tort and Authority had no authority to determine claim – Found claim based in tort – Authority declined to join A to proceedings – RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – Found applicant’s solicitor wrote to D and set out personal grievance claim – P claimed applicant gave notice of personal grievance to D personally and not P – Found letter made clear applicant raised grievance against employer whether that was D or P – Found dispute about employer now resolved – Found grievance raised in time |
| Result | Application dismissed (practice and procedure) ; Application granted (raising personal grievance) ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s3(a);ERA s114;ERA s161(1)(r);ERA s221 |
| Cases Cited | BDM Grange v Parker [2005] ERNZ 343;Credit Consultants Debt Services NZ Ltd v Wilson (No 2) [2007] ERNZ 205 |
| Number of Pages | 6 |
| PDF File Link: | 2012_NZERA_Christchurch_1.pdf [pdf 27 KB] |