| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 299 |
| Hearing date | 26 Jul 2012 |
| Determination date | 31 August 2012 |
| Member | J Crichton |
| Representation | T Drake ; D Erickson |
| Location | Auckland |
| Parties | Hall v Dionex PTY Ltd |
| Summary | PRACTICE AND PROCEDURE – Application for removal to Employment Court (“EC”) - Applicant sought removal of matter to EC on ground important question of law likely to arise - Applicant claimed respondent had unjustifiably assigned respondent’s obligations as decision maker in disciplinary process to third party (“C”) not party to employment relationship – Authority found C for all practical purposes part of same wider entity that employed applicant – Found central issues of matter factual not question of law – Found alternatively if Authority mistaken and matter question of law, key question whether applicant unjustifiably dismissed not whether C’s involvement in disciplinary investigation appropriate - Application for removal to EC declined |
| Abstract | Applicant sought removal of matter to Employment Court (“EC”) on ground important question of law likely to arise. Applicant claimed unjustifiably dismissed, unjustifiably disadvantaged by respondent’s actions, commission payable to applicant outstanding and sought penalties for respondent’s breach of parties’ employment agreement (“EA”). Applicant claimed respondent had unjustifiably assigned respondent’s obligations as decision maker, owed to applicant if respondent conducted disciplinary process, to third party (“C”) not party to employment relationship. Applicant claimed did not consent and was not consulted about C’s involvement. C employee of company (“TF”). TF acquired respondent. TF implemented integration process where respondent employees became part of TF. TF commenced disciplinary inquiry into number of respondent managers including applicant. Applicant’s previous manager (“X”) dismissed by TF. X previously reported to C. Applicant claimed parties' employment agreement contained implied term that respondent itself would undertake any disciplinary conduct into applicant’s conduct. Respondent claimed C authorised by respondent director to undertake investigation. Respondent opposed application and claimed matter did not raise important question of law. Respondent claimed appropriate that Authority determine matter in first instance.;AUTHORITY FOUND –;PRACTICE AND PROCEDURE: In light of X’s dismissal logical that C dealt with disciplinary investigation in X’s place. C for all practical purposes part of same wider entity that employed applicant therefore not ‘stranger’ to parties employment relationship. Central issues of matter factual not question of law. Alternatively if Authority mistaken and matter question of law, key question whether applicant unjustifiably dismissed not whether C’s involvement in disciplinary investigation appropriate. Whether investigation carried out to appropriate standard not question of law. Whether applicant entitled to damages question of fact to be assessed in usual way. Matter did not involve important questions of law. Application for removal to EC declined. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s4(2);ERA s178;ERA s178(2)(a);ERA s103(2) |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015;Auckland District Health Board v X (No 2) [2005] ERNZ 551;Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2010] EWCA CIV 571;NZ Amalgamated Engineering, Printing and Manufacturing Union Inc v Carter Holt Harvey Ltd [2002] 1 ERNZ 74;George v Auckland Regional Council [2010] ERNZ 350;Hanlon v International Educational Foundation (NZ) Inc [1995] 1 ERNZ 1;Honda New Zealand Ltd v New Zealand Boiler Makers Union (1990) ERNZ Sel Cas 855 ; [1991] 1 NZLR 392;New Zealand Seamans Union IUOW v Gearbulk Shipping (NZ) Limited (1990) 3 NZELC 97;NZ Tramways and Public Passenger Transport Employees Union v Wellington City Transport Ltd [2011] NZEmpC 78;Salford Royal NHS Foundation Trust v Roldan [2010] EWCA CIV 522;Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659 |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Auckland_299.pdf [pdf 191 KB] |