| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 245 |
| Hearing date | 5 Oct 2012 |
| Determination date | 07 November 2012 |
| Member | D Appleton |
| Representation | T Jeffcott ; P McBride |
| Parties | Dr X v A District Health Board |
| Summary | COMPLIANCE ORDER – BREACH OF CONTRACT – PENALTY – Applicant sought compliance with parties’ settlement agreement (“SA”) and damages and penalty for respondent’s breach of SA – Authority found sending of memoranda to Employment Court (“EC”) not advancing respondent’s internal disciplinary process – Found respondent discharged obligation to provide statement to staff applicant elected to resign and went with respondent’s best wishes, and no additional requirement good wishes had to be held sincerely or respondent not to contact EC in terms of memoranda – Found sending of memoranda to EC did not result in confidential information becoming public – Found text of first memorandum did not speak ill of applicant and second memorandum attracted absolute privilege – Found respondent did not agree to compromise any claims against applicant – Found respondent did not breach implied term of SA and not estopped by terms of SA from making application to EC – No breach of SA – Found Authority unable to award damages for breach of SA – No penalty – JURISDICTION – Whether Authority had jurisdiction to amend SA – Whether Authority had jurisdiction to make previous non-publication order permanent – Found Authority’s jurisdiction with respect to SA limited to enforcing terms – No jurisdiction to vary terms of SA – Found non-publication order contained in previous Authority determination permanent and no jurisdiction in relation to previous order |
| Abstract | Applicant sought compliance with parties’ settlement agreement (“SA”) and damages and penalty for respondent’s breach of SA. Authority previously dismissed applicant’s application for injunctive relief and ordered non-publication of parties’ names. Applicant challenged Authority determination in Employment Court (“EC”) and EC made interim order prohibiting publication of parties’ names until EC hearing. Parties entered SA providing respondent not to advance disciplinary process relating to applicant and to confirm no disciplinary outcome resulted from process. SA provided statement to be issued to staff stating applicant elected to resign and went with respondent’s best wishes. SA provided all matters relating to employment relationship problem to remain private and confidential and parties not to speak ill of each other. Certain clause (“settlement clause”) provided terms of SA full and final settlement of all claims either party may have against respondent arising out of employment relationship. Applicant discontinued proceedings before EC. Respondent subsequently sent memorandum (“first memorandum”) to EC stating EC needed to finalise issue of any permanent non-publication and submitted good reasons for lifting interim non-publication orders. Respondent sent further memorandum (“second memorandum”) stating investigation had revealed substantial clinical failings as well as serious interpersonal and reliability issues with applicant. Applicant claimed sending of memoranda breached terms of SA or respondent estopped from taking further steps against applicant. Applicant sought order under Contractual Mistakes Act 1977 varying settlement clause and order making non-publication order in previous Authority determination permanent.;AUTHORITY FOUND –;COMPLIANCE ORDER – BREACH OF CONTRACT – PENALTY: Authority ordered non-publication of parties’ identities. Sending of memoranda to EC not advancing respondent’s internal disciplinary process relating to applicant. Respondent discharged obligation to provide statement to staff applicant elected to resign and went with respondent’s best wishes, and no additional requirement good wishes had to be held sincerely or respondent would not contact EC in terms of memoranda. Sending of memoranda to EC did not result in confidential information becoming public as first memorandum did not disclose anything EC did not already know from documents supplied by applicant when challenging previous Authority determination. Text of first memorandum did not speak ill of applicant and, while second memorandum could be said to speak ill of applicant, second memorandum document with sole purpose of making submissions to EC in judicial proceedings and attracted absolute privilege. Least strained interpretation of settlement clause respondent did not compromise any claims against applicant. Sending of first memorandum to EC not claim by respondent within meaning of settlement clause as more in nature of administrative act seeking EC’s direction on existing matter. Respondent did not breach implied term of SA as SA did not actually mean respondent would not make administrative application to EC. Interim nature of EC’s non-publication order and purported importance of issue meant issue should have been provided for in SA and failure to do so meant respondent not estopped by terms of SA from making application to EC. No evidence respondent failed to participate in mediation in good faith. No breach of SA. Authority unable to award damages for breach of SA. No penalty.;JURISDICTION: Authority’s jurisdiction with respect to SA limited to enforcing terms. No jurisdiction to vary terms of SA. Non-publication order contained in previous Authority determination permanent and Authority had no jurisdiction in relation to previous order. |
| Result | Applications dismissed; Costs reserved |
| Main Category | Compliance Order |
| Statutes | Contractual Mistakes Act 1977 s7;Contractual Mistakes Act 1977 s7(3)(c);ERA;ERA s137;ERA s137(1);ERA s137(2);ERA s141;ERA s148;ERA s148(1);ERA s148(3);ERA s149;ERA s149(3);ERA s149(4);ERA s151;ERA s151(2);ERA s162 |
| Cases Cited | Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988;BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 16 ALR 363;Dr X v A District Health Board [2012] NZEmpC 158;Gawthorne v Attorney-General [1996] 2 ERNZ 68;Hickman v Turn and Wave Ltd [2011] 3 NZLR 318;Jesudhass v Just Hotel Ltd unreported, Travis J, 24 June 2009, WC6A/09;South Tranz Ltd v Strait Freight Ltd [2007] ERNZ 704 |
| Number of Pages | 20 |
| PDF File Link: | 2012_NZERA_Christchurch_245.pdf [pdf 289 KB] |