| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 143 |
| Determination date | 13 July 2012 |
| Member | J Crichton |
| Representation | N McAlister (In person) ; W Bishop |
| Location | Auckland;Christchurch |
| Parties | McAlister v Hadley Francis Ltd and Ors |
| Other Parties | W Bishop, J Bishop |
| Summary | JURISIDICTION – Whether Authority had jurisdiction to consider applicant’s arrears of KiwiSaver claim – No jurisdiction to consider applicant’s arrears of KiwiSaver claim – RECOVERY OF MONIES – Applicant sought recovery of legal expenses incurred defending claim for payment of credit card debt – Authority found fair employer would have been absolutely explicit with new employee about risk employee undertaking by singing credit card documents – Found respondent breached implied term in employment agreement that respondent would protect applicant from having to meet respondent’s business costs – Respondent to pay applicant $1,922 recovery of legal expenses incurred defending claim for payment of credit card debt – PRACTICE AND PROCEDURE – Applicant sought to claim against second and third respondents personally as directors of first respondent – Found obligation to reimburse legal expenses incurred by applicant defending claim for payment of credit card debt vested in first respondent as applicant’s employer – Found no jurisdiction to join third parties in respect of such a claim – Found second and third respondents should not be joined as parties - Salesman |
| Abstract | Applicant employed by respondent as salesman. Applicant sought recovery of legal expenses incurred defending claim for payment of credit card debt. Applicant sought arrears of KiwiSaver. Applicant sought to claim against second and third respondents personally as directors of first respondent. Applicant provided with credit card for use on company business and signed document including statement applicant personally liable for debt. Applicant claimed unaware effectively guaranteeing debt. Respondents claimed documents clear that applicant incurring personal liability. After employment relationship ended first respondent failed to tell applicant credit card debt not being repaid and failed to tell credit company (“D”) that applicant no longer employed by first respondent. Six months later applicant received letter from D requiring payment of credit card debt. Applicant defended proceedings. Seven months later first respondent paid credit card debt. Applicant sought to recover legal costs incurred defending D’s claim.;AUTHORITY FOUND –;JURISDICTION: Applicant entitled to payment of arrears of KiwiSaver but matter within jurisdiction of Inland Revenue Department. No jurisdiction to consider applicant’s arrears of KiwiSaver claim.;RECOVERY OF MONIES: Applicant unaware incurring personal liability by signing credit card documents. Fair employer would have been absolutely explicit with new employee about risk employee undertaking by signing documents. Unreasonable for first respondent to expect applicant to take no steps to defend applicant’s position during seven months between applicant being served with demand by D and first respondent paying credit card debt. Implied term in employment agreement that respondent would protect applicant from having to meet respondent’s business costs. Respondent breached implied term by failing to pay credit card debt within reasonable timeframe. Respondent to pay applicant $1,922 recovery of legal expenses incurred defending claim for payment of credit card debt.;PRACTICE AND PROCEDURE: Obligation to reimburse legal expenses incurred by applicant defending claim for payment of credit card debt vested in first respondent as applicant’s employer. No jurisdiction to join third parties in respect of such a claim. Second and third respondents should not be joined as parties. |
| Result | Application granted (recovery of monies); Recovery of monies ($1,922.46); Applications dismissed (jurisdiction – arrears of KiwiSaver)(practice and procedure); Costs to lie where they fall |
| Main Category | Recovery of Monies |
| Statutes | ERA s131(1)(a);ERA s161;ERA s161(1)(r);KiwiSaver Act 2006;Tax Administration Act 1994 |
| Number of Pages | 8 |
| PDF File Link: | 2012_NZERA_Christchurch_143.pdf [pdf 155 KB] |