| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 407 |
| Determination date | 16 November 2012 |
| Member | R Larmer |
| Representation | T Drake ; P Akbar |
| Parties | Hall v Westpac New Zealand Ltd |
| Summary | PRACTICE AND PROCEDURE – Application for removal to Employment Court (“EC”) – Authority found whether applicant had right to work under implied term in employment agreement (“EA”) and entitled to cancel EA if repudiated by respondent likely only to arise incidentally – Found determination of whether lawful for respondent to extend applicant’s unpaid leave and to consider redundancy provisions in EA as not having come into effect involved predominantly factual questions rather than questions of law arising other than incidentally – Found whether EC should overturn previous decision regarding availability of exemplary damages question of law – Found whether exemplary damages available not decisive of case or any important aspect of case and issue would arise only if liability for breach of EA established – Found whether exemplary damages available for breach of EA not important question of law – Application for removal declined – Director |
| Abstract | Applicant employed by respondent as director. Applicant sought removal of matter to Employment Court (“EC”) on ground important questions of law likely to arise. Applicant took twelve months leave under respondent’s career break policy. Applicant claimed did not have much choice but to agree to extension of unpaid leave. Applicant did not return to work after end of unpaid leave, resigned subsequently and claimed constructively dismissed. Respondent advised applicant respondent did not regard applicant’s situation as redundancy so no discussion with applicant about possible redundancy or redeployment opportunities. Applicant claimed whether applicant had right to work under implied term in employment agreement (“EA”) and entitled to cancel EA if repudiated by respondent important question of law likely to arise. Applicant claimed whether lawful for respondent to extend applicant’s unpaid leave and to consider redundancy provisions in EA as not having come into effect important question of law likely to arise. Applicant claimed whether exemplary damages available for breach of EA important question of law likely to arise. Respondent relied on previous Court of Appeal (“CA”) judgment as authority for proposition exemplary damages unavailable for breach of contract and applicant acknowledged previous EC judgment supported proposition CA judgment meant exemplary damages unavailable for breach of EA. Applicant claimed subsequent developments cast doubt on whether CA judgment meant to exclude exemplary damages for breaches of EA and applicant intended to ask EC to reconsider earlier decision.;AUTHORITY FOUND –;PRACTICE AND PROCEDURE: Key issue to be determined whether applicant’s resignation voluntary or result of breach of duty by respondent. Whether applicant had right to work under implied term in EA and entitled to cancel EA if repudiated by respondent likely only to arise incidentally. Determination of whether lawful for respondent to extend applicant’s unpaid leave and to consider redundancy provisions in EA as not having come into effect involved predominantly factual questions rather than questions of law arising other than incidentally. Whether EC should overturn previous decision question of law. Whether exemplary damages available not decisive of case or any important aspect of case and issue would arise only if liability for breach of EA established. Whether exemplary damages available not of major significance to employment law generally and law related to availability of exemplary damages currently settled. Whether exemplary damages available for breach of EA not important question of law. Even if availability of exemplary damages important question of law, appropriate for Authority to exercise discretion to decline to order removal as undesirable to remove particular case. Application for removal declined. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA;ERA s103A;ERA s178(2);ERA s178(2)(a);Wages Protection Act 1983 |
| Cases Cited | Auckland District Health Board v X (No 2) [2005] ERNZ 551;B D M Grange Ltd v Parker [2005] ERNZ 343 ; [2006] 1 NZLR 353;Hanlon v International Educational Foundation (NZ) Inc [1995] 1 ERNZ 1;Paper Reclaim Ltd v Aotearoa International Ltd [2006] 3 NZLR 188;Prins v Tirohanga Group Ltd (formerly Tirohanga Rural Estates Ltd) [2006] ERNZ 321 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Auckland_407.pdf [pdf 238 KB] |