| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 147 |
| Hearing date | 18 Oct 2012 |
| Determination date | 29 November 2012 |
| Member | P R Stapp |
| Representation | J Price (in person) ; H McIntyre |
| Location | Wellington |
| Parties | Price v The Chief Executive of the Ministry of Social Development |
| Summary | COMPLIANCE ORDER – PENALTY – Applicant claimed respondent breached clauses 1, 3 and 5 of parties’ record of settlement (“RS”) by making final payments late, disclosing to prospective employer applicant had written reference provided by respondent when reference subject to confidentiality under RS and by not speaking to prospective employer in terms consistent with written reference – Authority found respondent breached clause 3 of RS by failing to pay applicant by specified date but respondent’s failure not deliberate, wilful, malicious or sustained – Found manager (“X”) not involved in applicant not being paid on time and acted immediately to resolve issue on being informed of problem – Found respondent breached clause 1 of RS by revealing existence of written reference when reference subject to confidentiality – Found respondent breached clause 5 of RS by failing to speak in terms consistent with written reference – Found X’s actions deliberate but based on genuine reason of wanting to help applicant – No penalty – Found compliance order not appropriate as opportunity for X to speak in terms consistent with written reference with prospective employer had passed – Interest payable for period of late payment – JURISDICTION – Whether Authority had jurisdiction to award damages and compensation sought for breach of RS – Found no jurisdiction to award damages and compensation sought for breach of RS |
| Abstract | Applicant claimed respondent breached clauses 1, 3 and 5 of parties’ record of settlement (“RS”) by making final payments late, disclosing to prospective employer applicant had written reference provided by respondent when reference subject to confidentiality under RS and by not speaking to prospective employer in terms consistent with written reference. RS provided applicant to be paid entitlements by specified date. RS provided respondent to provide applicant with written reference containing certain points and manager (“X”) to speak in terms consistent with written reference should there be any request for verbal reference. RS provided terms of RS to remain confidential to parties. Applicant paid 18 days after date specified in RS. Applicant attempted to obtain employment and one prospective employer contacted X for reference. X unaware applicant had not included written reference in application, disclosed existence of written reference, informed prospective employer to ask applicant for copy of reference and stated would not answer any questions. Applicant claimed RS provided only for written reference to be provided to applicant and then up to applicant how to use reference. Respondent claimed reasonable to believe applicant would use written reference for prospective employment purposes.;AUTHORITY FOUND –;COMPLIANCE ORDER – PENALTY: Respondent breached clause 3 of RS by failing to pay applicant by specified date but respondent’s failure not deliberate, wilful, malicious or sustained and probable internal processes responsible. X not involved in applicant not being paid on time and acted immediately to resolve issue on being informed of problem. Reference in RS to request for verbal reference meant open to applicant to decide what to do with written reference, including keeping reference private. Respondent breached clause 1 of RS by revealing existence of written reference when reference subject to confidentiality. Respondent breached clause 5 of RS by failing to speak in terms consistent with written reference. X’s actions deliberate but based on genuine reason of wanting to help applicant by avoiding being compromised. No penalty. No penalty for breach of good faith as duty of good faith did not apply after employment relationship ended. Compliance order not appropriate as opportunity for X to speak in terms consistent with written reference with prospective employer had passed and compliance order would have no effect. Interest payable for period of late payment.;JURISDICTION: No jurisdiction to award damages and compensation sought for breach of RS. |
| Result | Applications dismissed; Interest (5%); Disbursements in favour of applicant ($71.56)(filing fee); No order for costs |
| Main Category | Compliance Order |
| Statutes | ERA;ERA s4;ERA s137;ERA s137(2);ERA s141;ERA s149;ERA s149(3);ERA s149(4);ERA s151;ERA s151(2);ERA s162;Judicature (Prescribed Rate of Interest) Order 2011 |
| Cases Cited | Balfour v Chief Executive, Department of Corrections [2007] ERNZ 808;South Tranz Ltd v Strait Freight Ltd [2007] ERNZ 704 |
| Number of Pages | 8 |
| PDF File Link: | 2012_NZERA_Wellington_147.pdf [pdf 166 KB] |