| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 227 |
| Hearing date | 16 Oct 2012 |
| Determination date | 17 October 2012 |
| Member | M B Loftus |
| Representation | A Boniface ; K Tohill |
| Location | Dunedin |
| Parties | Harrington v Picture Vehicles Ltd formerly know as Central Freight Services Ltd & Anor |
| Other Parties | Thunderbird One Ltd |
| Summary | PRACTICE AND PROCEDURE – Applicant sought that proposed second respondent (“TO”) be joined to proceedings – Authority found first respondent’s name in parties' employment agreement only intended as reference to trading name under which TO operated - Found TO was identified on documents and equipment applicant used on daily basis during employment - Applicant employed by TO – Found delays in determining matter caused by legal aid application and prejudice to TO no different to situation if applicant had correctly identified TO as employer initially – Found no exceptional circumstances to justify depriving applicant of right to pursue grievance - Authority ordered TO to be joined to proceedings - Driver |
| Abstract | Applicant employed as driver by company operating franchise. Applicant sought that proposed second respondent (TO") be joined to proceedings. Applicant claimed unjustifiably dismissed and unjustifiably disadvantaged through discrimination and sexual harassment at workplace. Applicant claimed employed by first respondent. First respondent claimed did not employ applicant rather TO employed applicant. Applicant claimed was employed by first respondent and preferred to proceed against first respondent if possible as considerable period of time has passed since events giving rise to grievance occurred. Franchise had since been sold and TO had become shell company with no assets. First respondent also no longer trading and without assets. First respondent and TO had same registered office, directorship and shareholding. Applicant’s employment agreement (“EA”) identified first respondent as “company” and therefore applicant claimed employed by first respondent. Applicant claimed unaware of TO until resigned. First respondent claimed had always been “shell” company designed to protect TO’s trading name, never traded during applicant’s employment, franchise agreement was with TO and applicant aware of TO’s existence during employment. First respondent claimed TO should have been named as applicant’s employer however, due to passage of time and changes in TO’s circumstances, TO would be severely prejudiced if added as respondent.;AUTHORITY FOUND –;PRACTICE AND PROCEDURE: First respondent’s name in parties' EA intended as reference to trading name under which TO operated. TO was identified on documents and equipment applicant used on daily basis during employment. Applicant employed by TO. Given overlap in management and shareholding between respondents, TO in position to address information relevant to applicant’s grievance. Delays in determining matter caused by legal aid application and prejudice to TO no different to situation if applicant had correctly identified TO as employer initially. No exceptional circumstances to justify depriving applicant of right to pursue grievance. Authority ordered TO to be joined to proceedings." |
| Result | Application granted ; Orders made ; No order for costs |
| Main Category | Practice & Procedure |
| Statutes | ERA s65(2)(a)(i) |
| Number of Pages | 5 |
| PDF File Link: | 2012_NZERA_Christchurch_227.pdf [pdf 101 KB] |