| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 325 |
| Determination date | 19 September 2012 |
| Member | A Dumbleton |
| Representation | A Drake, R Childs ; J Douglas |
| Parties | Alim v LSG Sky Chefs New Zealand Ltd |
| Summary | PRACTICE AND PROCEDURE – Application for removal to Employment Court (“EC”) – Authority found real issue of matter was what terms and conditions applicant employed under and what applicant’s entitlements were before employment transferred to respondent – Found important questions of matter factual not questions of law – Found in all circumstances matter should not be removed to EC - Application for removal declined |
| Abstract | Applicant sought removal of matter to Employment Court (“EC”) on grounds matter involved important question of law and in all circumstances EC should determine matter. Respondent opposed application. Applicant claimed unjustifiably dismissed, unjustifiably disadvantaged by respondent’s actions and sought arrears of wages. Matter involved transfer of applicant's employment from previous employer (“PRI”) to respondent. Respondent’s actions and associated company in transfer had been before EC and High Court previously and findings could be relevant to applicant’s case. Applicant advised by PRI eligible to transfer employment to respondent. Applicant claimed respondent failed to provide same terms and conditions after transfer as had applied when employed by PRI. Applicant claimed respondent failed to recognise applicant’s seniority or entitlement to service leave and annual holidays. Applicant claimed eventually forced to resign. Respondent claimed applicant and PRI failed to provide clear and accurate information about applicant’s terms of employment. Previous EC and High Court cases suggested PRI had inflated employee entitlements before employees transferred.;AUTHORITY FOUND –;PRACTICE AND PROCEDURE: Meaning of words “immediately before” in s69I Employment Relations Act 2000 not question of law. Real issue of matter was what terms and conditions applicant employed under and what applicant’s entitlements were before employment transferred. Important questions in matter factual not questions of law. In all circumstances matter should not be removed to EC. Application for removal declined. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s6A;ERA s178;ERA s69I;ERA s69I(2);ERA s69J;ERA Part 6A;ERA s177;ERA s178(2)(a);ERA 178(2)(d) |
| Cases Cited | Alim v LSG Sky Chefs New Zealand Ltd [2012] NZEmpC 147 |
| Number of Pages | 8 |
| PDF File Link: | 2012_NZERA_Auckland_325.pdf [pdf 229 KB] |