| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 204 |
| Hearing date | 16 Aug 2011 |
| Determination date | 21 September 2012 |
| Member | H Doyle |
| Representation | G Cooper ; C Corlett |
| Location | Christchurch |
| Parties | Miller v Springfree New Zealand & Anor |
| Other Parties | Dongguan Sheng Hui Fitness Equipment Co Ltd |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Applicant claimed employed by respondents jointly – Authority found no documentary evidence applicant resigned from first respondent – Found payment of bonuses to applicant by first respondent supported close association between respondents – Found applicant continued to be under director’s (“H”) control while employed at second respondent – Found applicant’s leave applications confirmed with first respondent – Found respondents had closely associated purpose and H had common operational control over both respondents and applicant – Found applicant employed by first respondent and second respondent jointly – COUNTERCLAIM – JURISDICTION – Whether Authority had jurisdiction to hear claims against second respondent – Found fact that applicant did not read employment agreement (“EA”) with second respondent in circumstances where EA provided to Chinese officials for residency purposes did not prevent finding express selection by parties Chinese law proper law of contract – Found express intention Chinese law governing law of EA – No jurisdiction to hear claims against second respondent – Engineer |
| Abstract | Applicant employed by respondents as engineer. Applicant claimed unjustifiably disadvantaged by respondents’ actions and unjustifiably dismissed by respondents. Applicant claimed employed by respondents jointly. First respondent claimed applicant employed by second respondent only. Second respondent claimed New Zealand not appropriate jurisdiction to hear matter. Applicant employed by first respondent. Second respondent wholly owned subsidiary of first respondent running first respondent’s operations in China. Applicant made frequent trips to China and proposed relocating to China to work at second respondent’s factory. Respondents’ director (“H”) agreed and claimed applicant resigned from first respondent. Applicant’s annual leave entitlement carried over to applicant’s employment with second respondent. Applicant signed employment agreement (“EA”) with second respondent for residency purposes but EA not translated for applicant at time of signature. EA provided governing law was Chinese law. Applicant paid various components of remuneration by respondents and third company. After applicant requested standard EA, H sent applicant latest version of first respondent’s EA and stated understood applicant operating under same terms as employees in New Zealand. Respondents claimed first respondent’s EA sent for comparative purposes only. Applicant purchased iPad for business purposes, was reimbursed by first respondent and iPad included on first respondent’s asset register.;AUTHORITY FOUND –;PRACTICE AND PROCEDURE: No documentary evidence applicant resigned from first respondent. EA between applicant and second respondent not conclusive evidence of parties’ intention for applicant to work for second respondent alone as agreement signed to obtain residency. Payment of bonuses to applicant by first respondent supported close association between respondents. Applicant continued to be under H’s control while employed at second respondent and distinction between H’s role as director of first respondent and director of second respondent not apparent to applicant. Applicant’s leave applications confirmed with first respondent. Sending of first respondent’s standard EA to applicant as basis for future negotiation supported some common control over applicant by respondents. Article by applicant not supportive of applicant believing employed by second respondent only. Interlinked relationship between respondents demonstrated by fact applicant provided with power of attorney to sign customs documents on behalf of both respondents and iPad included on first respondent’s asset register despite being used for work with second respondent. Respondents had closely associated purpose and H had common operational control over both respondents and applicant. Applicant employed by first respondent and second respondent jointly.;COUNTERCLAIM – JURISDICTION: Fact applicant did not read EA with second respondent in circumstances where EA provided to Chinese officials for residency purposes did not prevent finding express selection by parties Chinese law proper law of contract. Express intention Chinese law governing law of EA. No jurisdiction to hear claims against second respondent. |
| Result | Applications granted; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s6 |
| Cases Cited | Clifford v Rentokil Ltd [1995] 1 ERNZ 407;Gothard, Re AFG Pty Ltd (Receivers and Managers appointed) (in liq) v Davey [2010] FCA 1163;Hutton v Provencocadmus Ltd (in rec) [2011] NZERA Auckland 482;Orakei Group (2007) Ltd (formerly PRP Auckland Ltd) v Doherty (No 1) [2008] ERNZ 345 |
| Number of Pages | 14 |
| PDF File Link: | 2012_NZERA_Christchurch_204.pdf [pdf 268 KB] |